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Brian Zubel (Legal)

My brother was murdered 5/28/99. I need to know what to expect from the trial. The people who did it have been caught and are now in jail. My family have no idea what to expect or what our rights are as far as sentencing. Do we have any say in what happens???

As far as the trial itself, the first thing to prepare for is delay. While murder cases should take priority over all others, the complexity of both their evidence and procedure often prevents this. For instance, the defense has a right to request psychiatric evaluations for the defendant. These alone can cause a case to adjourned for several months. Depending on the circumstances, the prosecution may need more time to develop complex scientific evidence, such as DNA. It may be necessary to conduct pre-trial hearings to determine whether certain evidence or defenses will be available. The fact that there are multiple defendants in your case may also cause delays; the court may be required to empanel several juries, or even grant completely separate trials for the defendants. The prosecutor or district attorney actually handling your case is in the best position to advise you on these developments, as well as prepare you for what the issues and defenses are likely to be when the case does go to trial. As far as your rights at sentencing, this is controlled by the law of your state. While all states now have some from of Victims' Rights law, they do vary. Most jurisdictions require that the prosecutor or district attorney advise you of court dates and adjournments, but only if you request this in writing. Contact your prosecuting official directly; they usually have dedicated Victim Advocates available to answer your questions and provide referrals. The National Victims' Center also has a toll free information number: 1-800-FYI-CALL.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My mother was murdered 5 years ago. Her husband has been the only suspect in the case. He had been having an affair and my mom found out and was going to divorce him. He said that before he would go through another divorce he'd kill her, which is what he did. He spent the first 10 months as a free man while the police and prosecutors tried to get a good solid case against him. He then spent the next 11 months behind bars awaiting trial. Two weeks before the trial he was released because the prosecutor no longer felt that he had a "good" case. This was due, in part, to the medical examiner, who performed the autopsy, being relieved of his duties due to incompetence. There were not any witnesses who saw him walk into their home or walk out of their home around the time my mom was killed. However, there are people who have been able to place him in the immediate area around that time. At the time of the trial the prosecutor had told us that there were satellites overhead taping at all times and that might provide a picture of this man walking in to or out of the home. The reason we did not pursue that at the time was because the prosecutor also said that it probably wouldn't be worth the money because of the overgrowth of trees around the home. At one time I read a statement that the girlfriend had made in which she states that he had told her in third person that whoever had done this could have parked at a local shopping plaza and walked across the woods that ran between the plaza and their home. He stated this would explain why none of the neighbors saw anyone enter or exit the home. I would like to know what it would take to go back and get the tape that would show that area at that time. How much does something like that costs and how powerful is the camera as far as would it be able to identify the individual beyond a shadow of a doubt? I appreciate your time in reading this. Please understand that this has consumed my life for the past 5 years and I feel that I can't give up until this man pays for what he did to my mother. Only then will my mother and our family be able to rest in peace.

It is difficult to comment on the charging and dismissal decisions of other prosecutors, especially not knowing the all of evidentiary problems in detail. The testimony of the Medical Examiner is obviously critical to successful homicide prosecution; it is possible that the prosecutor felt that crucial evidence had been lost, or compromised through the actions of the ME. Was a new autopsy attempted? Sometimes it is possible to exhume remains and develop useful evidence with a new autopsy, even years later.

As far as satellite imagery goes, I know that they are capable of remarkable things. Whether such satellites actually captured these events, and the costs you discussed with the prosecutor are simply beyond my knowledge. Did the prosecutor have any specific information regarding whose these were, or the agencies involved?

Your last question deals with the use of hearsay statements in court. The defendant's own statements are generally admissible when offered against him by the prosecution. I am not clear when you say the statement was made in the third person; if the person repeating what the defendant said was not actually there to hear it himself, then there is a hearsay problem with using the statement in court.

It is difficult to deal with these complex issues without knowing more about the case. POMC offers a service which deals specifically with investigations which have reached an apparent dead end; this might be an appropriate case. (webmaster's note: please see the section on Second Opinion Services within this website.)

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Our son was murdered almost ten years ago. We only learned about a year ago (when one of the murderers confessed) how he was murdered as his body has not yet been found. The killer who confessed was sentenced to 8 years in prison as part of a plea agreement. He implicated the other killer who was the "master mind" in the planned murder. The other killer has pled "not guilty" to aggravated murder and is scheduled to go to trial in September 2000. Two other people associated with the two murderers also appeared before the Grand Jury and are cooperating with the prosecution to avoid prosecution for their knowledge about the murder. Our son's body was buried in a forested area and the killer who confessed was not able to locate his remains due to changes over the almost ten years in the terrain. There will be a motion hearing in April 2000. What is likely to be the defense strategy?

The defense will surely attack the credibility of the informant/coconspirator. He is vulnerable on a number of different points:

He has pled guilty to murder (defense can claim he did it and is framing defendant)

He got a plea/sentence bargain (he had a motive to shift blame to someone else)

They can't find the body, so the defense can claim it didn't happen the way the informant says (i.e. he not only did it, he's lying about it)

The defense can also claim that the informant doesn't want the body found because the physical evidence will show what really happened (that defendant didn't do it)

You did not specify what motion is being brought by the defense in April; perhaps they are challenging the sufficiency of the evidence to make the defendant stand trial.

In addition, at trial, the defense has a built-in reasonable doubt argument based just on the inability to find the body. This is not to say that the case cannot be won. For instance, the prosecution can argue that the informant is believable for the very reason that he pled guilty to murder after incriminating himself-- if anyone knows what happened, he certainly does. Informant cases are tough, but can be good cases at trial if presented properly.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I may sound morbid to you, but I would like to know how to go about getting my son's clothing back that he was wearing the night he was murdered. The murderer has already gone to trial, and was sentenced to life without parole, so the case is over. I don't know why it is important to me to get his clothes back, but it is. Maybe they still carry his scent, but I won't know until I get them back. What can I do to get them? I would appreciate any help you could give me.

First of all, your request certainly doesn't sound morbid to me. It seems only natural that a homicide survivor would want to have the personal effects of their loved one, including clothing. Just because the defendant was convicted and sentenced to life imprisonment doesn't mean that the case is over, however. The defendant will have the right to appellate counsel, and opportunities to appeal his conviction and sentence, not only in state courts, but in the federal courts as well. Having little else to do in prison for the rest of their lives, murder convicts have enormous time available to do legal research. Many become "jail house lawyers," filing numerous appeals, briefs, and motions without even relying on the assistance of a real attorney. The point is that the case may be far from over. While reversal of the conviction may seem very unlikely (even to the defendant) it is always possible that an appellate court may order a new trial. For this reason, police agencies are well advised to retain custody of evidence from murder cases until all of the defendant's appellate remedies are completely exhausted. Appellate procedure varies from state to state, so it is difficult to say with any accuracy how long this will take. The bottom line is that it can take many years. Rather than contacting the investigating police agency directly, it makes sense to stay in touch with the prosecutor actually handling the defendant's appeals. He or she will be in the best position to know when the property can be safely released to you.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------What happens when a person thinks they may have some crucial evidence, but it is only hearsay? Will the prosecuting attorney supsubpoenae particular person just to find out what was said in the conversation with the wife of a murderer? The acts that were committed moments earlier to the murder could prove premeditation. Three boys were egging a house as a prank for Halloween then drove approximately 1 mile to the occoccupantsn's house to egg it and that is where the murder took place. The mother allegedly called her son and said "Gilmore just egged our house and is headed your way." The accused murderer then had time to prepare for his ambush. An innocent 18 year old boy was shot in the back.

If you think that you even might have evidence in a murder case (or any other serious violent crime) by all means contact the appropriate police agency immediately. Don't worry about whether the information might be hearsay; that's why we have prosecutors and courts. There are plenty of exceptions to the hearsay rule which would permit the use of the statements for the prosecution.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son and his friend were murdered at a party in Spokane, Washington nearly a year ago. The murderer claimed self defense as he "feared for his life." My son had spent the majority of the evening sleeping on the couch in the living room and vomiting from ingesting too much alcohol/marijuana/LSD. The shooter was aware of my son's impaired condition. My son's friend, Brandon, had gotten into a fight in the basement of the party house, which apparently became a brawl involving several people. Someone got scared and fired a gun in the house to break up the fighting. Brandon and several others ran out the back door of the party house to find whoever had shot the gun in the house. Apparently, the gunshot woke my son and he followed them outside. When my son reached the back yard he found his friend, Brandon, telling a young man holding a gun to 'put it down' and 'give me the gun,' etc. The young man with the gun was not the same person who had fired the gun in the house. Apparently this particular young man had been at the same party but was standing on the neighbors back porch showing off his gun to the neighbor when the shot was fired in the party house. The young man told the neighbor to call 911 and then jumped two three foot fences, with his gun drawn, to get into the back yard where he was confronted by Brandon. Supposedly, a person at the party stated that my son said he was going to help Brandon. People at the party stated they believed my son and his friend were walking towards the young man with the intent to take the gun away. My son was intoxicated/drug affected but did not have a weapon and did not make any threats, neither did Brandon. The Spokane County Prosecutor refused to prosecute because "this area has a Wild West attitude about the Right To Bear Arms and there is not enough evidence for a jury to find the shooter guilty." Several things have not seemed right with the investigation. Blood tests were done on the victims but not on the shooter. The shooter was never arrested. Investigators made several very sympathetic statements regarding the shooter. The Investigator admitted the shooter had an extensive juvenile record, including at least one felony but was allowed to get a concealed weapons permit when he turned twenty-one because his juvenile records were sealed. Approximately 20-30 minutes before the shooting the neighbors had called 911 and asked to have the police come break up the party. Police came to the house but did not break up the party even though there were several underage kids there. So much does not seem right but I am uncertain of what to do or who to turn to. I believe several mistakes were made by Spokane County and I believe the shooter should have been prosecuted. What are my rights? Who do I turn to if the legal system is not doing their job? The shooter is walking free and still is allowed a concealed weapons permit. This does not seem right. What can I do? My son left behind a three year old little boy who is not entitled to Crime Victims Compensation because Spokane County refused to prosecute. This also does not seem right.

It is always difficult to try to second-guess the charging decisions of another prosecutor. Especially where I don't have all the facts, it wouldn't be fair (to you or him) to comment here on his decision not to charge. POMC has a service which specializes in conducting independent investigations and giving second opinions on murder cases; perhaps they could take a look at your case. Beyond this, your remedies are not limited to criminal prosecution. Have you spoken to a civil attorney specializing in wrongful death actions? The Goldman Family was successful in their civil lawsuit against O J Simpson; if you were to obtain a civil verdict in your favor you might persuade your prosecutor to review his charging decision. It might even be possible to develop evidence which would be of use in the criminal case.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My grandson was murdered in March of 1998. The district attorney handling the case continues to let the trial date be postponed. Each time they go to court they ask for and receive a continuance. Each time the district attorney assures the family they will get a trial date. No more putting it off. Now its been put off until August 2000. Just to set a trial date. I mentioned to the district attorney that maybe we should put the case back in the public eye so as they not forget that a 3 year old child was beaten to death. He is strongly against any media or other public exposure of the case. This seems out of context to me. Everyone such as victim rights and such feel the same. Bringing to attention that this is a rural area with a lot of good ole boy tactics. Blundered investigations, questionable autopsy reports. And money and local clout behind the accused murderer. He pulled less than a year on a prior conviction of bank robbery. I personally feel they are trying to cover up my grandsons murder. Question,should I ignore the suggestions of the DA and expose this in the media so the local people don't forget the murder?

Why is the case being adjourned? The Defendant as well as the People have a right to a speedy trial. While delays are often necessary to obtain psychiatric evaluations, resolve evidentiary issues, or develop forensic evidence, a criminal case cannot languish indefinitely. Ask the prosecutor to enumerate the reasons for each adjournment; if he does not give you a satisfactory explanation then you must pursue other alternatives. Rather than create resentment by publicly confronting him yourself, perhaps POMC could bring some pressure to bear; most public officials want to keep victim rights organizations happy.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------On April 5th, 1999, my 20 year old son, Adam Arnold, was coming home from his college classes, where he was studying to be a police officer. His major was criminal justice. He was planning to be a police officer, like my brother who works for the Chattanooga City Police Department here in TN. Adam was struck and killed by a drugged motorist, by the name of Diane Mays, 53 of Ider, AL, who failed to give him the right of way, by not stopping for her stop sign, in her brand new Mustang. He was killed instantly, I pray. One of the police officers who was at the scene of the wreck, Scott Hampton, was the worst example of a police officer that I have EVER met. He in no way helped my daughter who is 22, and also attended the same college as my son. She came upon the accident scene while my son and her only sibling's body, was still lying broken, and bleeding on the roadway, he had been riding a motorcycle at the time of his accident. She collapsed onto the pavement. She was picked up, not by the officer at the scene, but by an off duty auxiliary police man, who responded to the call by the name of Art Roper-GOD BLESS HIM. Art then brought her to my place of work, where she had the horrific task of telling me my only son was dead. I went straight to the hospital where they told me they were going to bring my son's body. After the ambulance arrived I wanted to go into the emergency room to see my son's body, and Scott Hampton refused to let me in the emergency room to see him, because in one of the other 6 or 7 rooms there, behind a closed door, they were observing Diane Mays, because in the past she had several heart attacks, but she was in no way injured by the accident, and she was released. I did not even know that Diane Mays was at the hospital. FINALLY I went to the doors to again ask to see my son's body, and Scott Hampton reached for his gun, and acted like he was going to pull it on me, if I entered the hospital emergency room. It was ridiculous. I only got to see my son's body, when my brother who is the police officer, got to the hospital, and made him let me in to see my dead child. I still had no idea that Diane Mays was anywhere in the hospital. My other brother then watched Scott Hampton escort Diane Mays to her car. Scott Hampton then refused to sign the autopsy papers, so I had to pay $750.00 that night BEFORE I left the hospital if I wanted one done. My brother had to make Scott Hampton take pictures of my son's injuries, and Scott refused to remove my son's clothing because he might get some blood on himself, so my brother had to remove my dead son's clothing so the pictures could be taken. My brother and my son were especially close, and I can only imagine how horrible of a task it was for him to do. While they were in the room taking pictures of my dead child, Scott said to my brother that " You should talk to your sister about not suing Diane Mays because she is such a nice old lady." This while my son's body was not even cold yet, and they still expect me to believe Scott to be impartial. During this whole accident my son was treated as the criminal, and Diane Mays as the victim. They only charged her with failure to yield. I learned two days ago that she admitted to taking the following drugs while she was driving, the day of the accident, in her signed and notarized deposition: Bumex-1 mg- fluid pill, Estrotest- hormone, Lotension-20 mg-blood pressure, Prednisone 10 mg-steroid, Prozac-20 mg- nerve medication, Pheyntoin/Dilantin-100mg each-taking 3 at night and two in the morning-this is a seizure medication, so should she even have a driver's license? She also on top of all these medications, then went to her Dr's office the morning of the accident and got a shot of Vistaril-which is used among other things to put patients to sleep before surgery and to treat the DT's. Three of the drugs she was taking clearly say: Use extreme caution when driving a car, and the side effects are dizziness and blurred vision. Three of the drugs also say do not take them together, because taken together they double and triple the doses of each other, thereby doubling and tripling the side effects. There are a couple of things I would like you to do for me: 1. Since my son wanted so to be a police officer, I would like to know if you could perhaps do some kind of memorial tribute to him, at the Chattanooga academy, or some kind of scholarship in his name? 2. I would like you to forward this letter to whom ever you think can help get this case re-evaluated so that Diane Mays can be charged with DUI or Vehicular Homicide, like she deserves. 3. I would like you to forward this letter to whom ever it needs to go, so that Officer Hampton is severely reprimanded or dismissed for his actions toward my family the day my son died. 4. I would like you to use this letter in training other police officers in how NOT to treat the victims family during a death. Not really much to ask for the loss of one's child. As for Diane Mays, the frail, sweet, old lady, well the week after my son's death, she moved all of her assets to her brother-in-laws name, so she would not have to pay for her actions. Sure sounds like a sweet old lady to me. Please do not let the system Adam so wanted to be a part of fail him now.

Training for both police and prosecutors in sensitivity to the emotional needs of homicide survivors remains a difficult problem. Police officers are expected to be experts across a vast range of complex and difficult areas. They must know the criminal law, the constitutional doctrine of search and seizure, precision driving, when (and how) to use both deadly and non-deadly force, evidence collection, the capabilities and limitations of forensic science, and everything from traffic control to crowd control. While police training is constantly being improved, sensitivity training for dealing with all the different types of crime victims is still in its infancy.

Organizations like POMC have been pioneers in this area, but the more humane and compassionate treatment of crime victims by law enforcement professionals remains very much a work in progress. Have you contacted the administration of the police agency involved in your case? It obviously can't change the past, but contact from you might result in a change in departmental policy or the future training of their officers. Does your POMC Chapter have a training outreach to local police agencies? In conducting Homicide Investigation Seminars here in Michigan, we always have a representative from POMC as a guest speaker; perhaps you could use your experiences to train officers in your area. To address your other questions, POMC does have a second opinion service to re-evaluate closed investigations; they can be contacted directly through the website. I don't know anything about setting up a memorial scholarship, however.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I have a question as to the effects that the Sheriff's Department had removed from my Daughter's apartment. She lived in an apartment complex where people could see what was coming and going out of her apartment, well there was a friend that lived right across from her, and she saw the Sheriff's department take out approximately 3 bags of things from her apartment. They also did not seal off her apartment as a crime scene. I have tried to get information as to where these things may be ,I get nothing but a run around, the only things I have left is a few things, the apartment complex had thrown out everything that was in her apartment, why I don't know!! I had an Attorney and he asked for there insurance policy, but they never complied, so he just left it go, and mind you everything in her apartment was brand new, because I purchased it my self!! The apartment complex sent me 50.00 and I guess they thought it would satisfy me, but I never cashed the check! I also have a question as to evidence: when are you supposed to get it back? All I get is grief, as if I'm the murderer I'm tired of getting treated as a piece of trash!!!!!!!! I also want my Daughter's autopsy pictures, yes I mean it in the most positive way!!!!!!!!

Recovering the personal effects of a murdered loved one is often a problem. Police investigators are trained to collect everything that even might be of value as evidence, and to keep it even after the trial is over. In your question you did not indicate the status of your daughter's case; if a suspect has not yet been charged or gone to trial, the police should certainly be keeping any evidence collected from her apartment. Even if the murderer has already been convicted, the police should still keep all evidence until all appeals have been exhausted. There is always the chance that an appellate court will order a new trial, even years following a conviction; there may yet be a need for the case evidence. Contact the detectives in charge of the investigation; find out what personal effects they have, and what the status of the case is. Either they or the prosecutor are in the best position to advise you on when the property may be released to you.

Also, just because neighbors saw the police removing bags doesn't necessarily mean that they were collecting up your daughter's clothing or other personal items. Often, crime scene technicians will remove portions of carpeting, flooring, curtains, or even pieces of woodwork, in order to examine them under a microscope for hair, fibers, toolmarks, blood or other tissues. Evidence collection and handling procedures are elaborate, and require that each separate piece be both individually and collectively bagged, marked, and inventoried. Even a few such pieces, once they are all bagged up, can look like a lot more than they really are.

On the other hand, recovery of property from the apartment complex, as opposed to police custody, is entirely a civil matter. Either the lawyer you hired, or a replacement, would be in the best position to advise and represent you.

Finally: autopsy photos. I'm not trying to talk you out of anything, but they are disturbing. If you are really sure that you want them, schedule a meeting with the medical examiner who performed the autopsy. Explain your feelings, and have him or her sit down with you and go through the pictures. In addition to being experts, these doctors are usually quite sensitive. They can answer your questions as well as explain what the pictures show. Actually, your request is not at all unusual. All homicide survivors are different, and some are better able to find some closure through such a meeting. You may also want to contact other POMC members in your area and discuss their experiences in this regard.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Thank you for your time in answering my questions. To let you know the murderer is serving his time, as of three years ago in July. I guess my question now would be how much longer does he think he has rights to try to get back out on the streets to do this again? In the transcripts, the items for evidence amounted to 132 and they used on 3 to 4 items during the trial. So why can't I have what they didn't use? I'm just trying to hold on to anything I can of hers because everything else was disposed of like she didn't pay her rent (just an example). As for the autopsy photos, I plan to use them as teaching purposes or you might say scare tactics, for the friends that don't believe this could happen to them. I just can't believe that girls believe this won't happy to them because of my daughter's murder, somehow they are feeling safe, that the police will run to them when they make that call. I know for a fact that the police won't be there because these girls continue to start the charges but not follow through. I just feel if it takes looking at the worst picture you have ever seen, then maybe I can get to one person, all I can do is try. I've talked till I'm almost at wits end, and I don't want to give up. Somehow I feel I owe it to my daughter.

Unfortunately, just because the evidence wasn't actually used at trial doesn't necessarily mean that the police can release it to you before the appeals are exhausted. Some of those exhibits may not have been used at the murderer's trial because the defense either stipulated to them or did not contest certain facts. While unlikely at this point, it is still possible that an appellate court could order a new trial. Should that happen, the defense would not be held to any stipulations they made at the first trial, and would be free to contest everything. You can see the problem, and the reason to hang on to the evidence. Contact your prosecutor; at this point he or she would be in the best position to advise you as to the status of any appeals, and when your daughter's property can finally be released to you.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Can criminal charges be brought against someone if there is no concrete evidence that a crime has been committed but there is over 150 inconsistencies/circumstantial evidence that indicates that a crime has been committed and a particular person(s) is involved? Also, if you have circumstantial evidence that there was a police cover-up? If you believe a murder has been committed, no weapon can be found, crime scene was not secured by police, no witnesses that we know of, any evidence was destroyed in a fire, including the victim, no investigation was conducted to find cause of accident or cause of fire, critical information on official reports cannot be explained/defy logic and laws of physics, vehicle not impounded that night so an investigation could be conducted. Would a prosecutor get involved in such a case?

Criminal charges may be brought whenever there is probable cause to believe a person committed a crime. The problem is, the burden of proof at trial is beyond a reasonable doubt. Prosecutors may therefore be reluctant to authorize charges on a flimsy case. It is difficult for me to comment further, not knowing all the circumstances of the case. I can tell you that many murderers are convicted on circumstantial proof where the weapon is never recovered; it is more a question of what evidence you do have, not what you don't.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I would like to ask a few questions about my son's unattended and suspicious death in May, 1999. He was missing for three days and found in the river. No autopsy was done. I question why there was no autopsy done at that time. Is it not the law to do one in a case like this? I question the responsibilities of the coroner, who never ever saw my son. How can he say that he drowned just by looking at his body on the side of the river? He didn't get close enough to take pictures of the bruises and cuts on his body. I know he had bruises and cuts because of the autopsy I had done in August of 1999.

You are correct. A suspicious death of this nature should be investigated by the medical examiner. The fact that he was missing should have been enough to trigger a more in-depth investigation. On the other hand, some of the other information you were given is accurate. Three days of immersion in fresh water would cause enormous changes to the skin. The description of your son as unrecognizable is consistent with such circumstances. Obviously, without knowing all the facts and circumstances, it would be unfair for me to comment further. What were the findings of the autopsy you had performed?

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------Can you give me any information on what a "ducas tecum" is? Can I file it myself or do I require an attorney, and if so, do you know of any in the state of Colorado who would know about this matter?

A subpoena duces tecum is a subpoena for records, the problem is that you need to have a case before you can issue subpoenas. How about a request under the Freedom of Information Act (FOIA)? This is statutory: just look up the Colorado law and follow the directions. You shouldn't need a lawyer. If they still refuse, the law will also set forth the procedures to compel production (for that you will probably need a lawyer). If it goes that far, let me know, and I can get you the name of somebody reputable.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was murdered August 23, 1999. I received a phone call from someone that told me that my son had a "close" relationship with the now ex-wife of one of the detectives. At the time of this relationship, they were apparently still married. I called the sheriff's office and spoke to a Sergeant and explained the situation and told him that on several occasions prior to hearing about this relationship, we had asked the detective if he knew my son prior to his murder and he always said no. I explained that I was afraid there was a conflict of interest. Not that I had any specific problem with this detective but that if in fact this was true, first of all, he had lied to us and secondly, I was questioning whether the detective could keep any personal hard feelings he had for my son out of his investigation. He is after all, only human. After waiting for about a week and not getting any reply from the Sergeant, I made an appointment with the Sheriff. Well, as it happens, the detective in question was removed from my son's case that very day. But now I have to wonder if in fact he has followed all leads thoroughly, and not had any influence from the situation in any of his reports. I do know that some of the stories that I heard and relayed to him, that he did not speak to the person that I told him had told me. Maybe he just skipped that person and went straight to the person where it supposedly originated from. I don't know. But there was an obvious conflict of interest if the Sheriff took him off the case as soon as I spoke to him. Do you have any suggestions of how to be sure these leads were investigated properly, or if there is someone I should talk to that is not involved with this department that would be objective? Thank you for your time.

From the Sheriff's reaction to your inquiry, it would seem that there was indeed a conflict of interest. In such a case, your concerns about the objectivity of the investigation are justified. Regardless of the personal integrity and professionalism of the individuals involved, investigators and prosecutors should always avoid handling cases where they have a personal connection with the parties. In order to preserve public confidence in law enforcement, even the appearance of a conflict should be avoided. On question I have involves the size of the department. If your Sheriff has a large staff of hundreds of officers, reassigning the case would almost certainly be adequate to solve the problem. On the other hand, if they have only a few officers all working out of the same station, it might make sense to have the case handled by a different department altogether. Either your State Police or State Attorney General would have the authority to investigate in such circumstances. You might wish to contact them with your concerns.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I am looking for some help in defining legal steps for a capital crime in South Carolina. My daughter was raped and murdered 12/25/98 and the man accused is in police custody. Last June, the accused was notified of the state's intention to seek the death penalty. At this point, the Solicitor has been saying consistently each week for the last three months that the SC Court Administration should be setting a trial date next week. An article appeared in the local paper last week that he plans to ask the Court Administration to schedule a trial date to take place during the second half of 2000. Does the Solicitor have to request a date be set before the Court Administration considers scheduling the trial? What exactly does the SC Court Administration do? Who's responsible for what? So far, the Solicitor's answers to me only confuse me.

I'm sorry it took me so long to get back with you, but as your questions dealt with South Carolina procedures, I needed to do some investigation. There are indeed some procedural hurdles to clear before obtaining a firm trial date on a capital case in South Carolina. The South Carolina Courts require that in every death penalty case, a single trial judge be appointed to have exclusive jurisdiction. Even though the Solicitor controls the criminal docket, the schedules of the Judge, Defense Attorney, and Solicitor must all be made to coincide. As a practical matter, resolving these three-way scheduling conflicts can be difficult to achieve. While some death penalty cases can be tried in as little as one year, it sometimes takes as long as three years to bring such a case to its conclusion. Obviously, these are only procedural considerations; there may be substantive reasons for delay as well. The use of some Forensic Sciences can result in delays, to enable the defense to complete discovery and prepare. With respect to the trial itself, the proceeding is bifurcated (or divided). When a capital defendant pleads not guilty, his case must be decided by a jury. The first half of the trial is to determine his guilt on the charges. If the defendant is convicted, the jury then decides whether or not the death penalty will be imposed. This second part, or penalty phase, of the trial is separated from the first by a statutory 24 hour waiting period. I hope I have answered some of your questions. Certainly your best source for information is the Solicitor handling your case.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Aaron was murdered last July 3rd at his place of employment. The murderers have been sentenced after plea bargaining and the murderer got he maximum of 60 yrs and the instigator got 50. We can deal with this except the fact that there is parole and mandatory release. Is there anything we can do with the corporate division of the store? We feel that Aaron was mislead to the safety of the store, and there is no security or training for employees. Aaron was left alone in the store and it was noted by the police that it was in a dangerous neighbor hood. Aaron came from a good town and went to a big city for the money. After being there he felt unsafe bug being from a responsible family stuck it out until he could find another job. IF the store had security, did not take just cash and had more than one person in the store than Aaron would probably be alive today. We would like the company to pay for the loss of Aaron's life and the uncaring way they have for their employees. Is there anything we can do.

What you need to do is contact a civil lawyer who specializes in wrongful death cases. If you don't know any lawyers in your area from whom to get a referral, just contact your local bar association. Most have a lawyer referral service.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------I lost a family member to murder in May, 1997 in Kansas. The man confessed, spent 11 months in jail awaiting trial and we ended up with a hung jury. He was held an additional 90 days and then released. The D.A. said she would not retry the case until there was some physical evidence to back up the confession. My question is this: We were told that once a case goes to trial that it is public record. We would like to obtain a typed transcript of his confession that was presented in court for our own personal record. We contacted the court reporter and asked about the court transcript. She said she did not record the confession as it had already been typed by the local police department and it was also on video tape. We asked the Lieutenant in charge if we could obtain a typed copy of the confession and he said we would NEVER get a copy of this man's 6 and 1/2 hour confession. I was told that everything that was presented in court was considered public record. Is that true? Why can we not have a copy of this man's confession? Is there anything that we can do to obtain a copy? Any insight you can give me will be deeply appreciated.

Yes, everything that happens in court is a matter of public record, unless the court seals the record for some specific purpose. As a practical matter, a Freedom of Information Act request sounds like your most promising solution. You can simply go to your local law library, make a copy of the statute, and follow the procedure it specifies. While I don't know Kansas law, there should be a simple written procedure for requesting a copy of the confession transcript, if it has in fact already been transcribed. The statute will also specify the cost of obtaining such copies; it may be expensive considering the volume of paper. Most FOIA laws also have a procedure for when the agency refuses to comply with a request. If the police cite some grounds on which they refuse to comply, you may have to go to court to compel production of the transcript. Under such circumstances, it is a good idea to hire a lawyer to help you. Your local bar association should have a lawyer referral service you can call.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Could you tell me the procedure for having an elected judge removed from the bench? Does it differ by state? Is it based on a portion of the voting population in a country? There is a judge who granted supershock parole to two killers who tortured and killed a 3 year old child. She explained (in her order releasing both killers) that she believes this murder was an "isolated aberrant act that will not be replayed", adding that the killers "completed their GED's and 3 anger management sessions." In addition, she released the woman so she could "take care of her own children". I find this truly bizarre. She sentenced each killer to 7 to 25 years in jail, but their combined sentence was less than 7 years. I would appreciate any assistance you could give me.

The procedure for having a state judge removed from the bench will be specified under the laws of that state. It is guaranteed to be a long, difficult, and expensive process. Have you considered a complaint to the judicial tenure commission, or your state equivalent? Or how about simply backing their opponent in the next election? I'm not trying to discourage you from your original idea, but some of these other solutions might have a greater chance of success.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------The District Attorney's office has told us that the Grand Jury "no billed" the woman who stabbed my son in the heart and killed him. She said it was self-defense and, as the prosecutor told us, my son advanced toward her while she was holding the knife. On the 911 tape, she is is very cooperative and follows all the directions given by the 911 operator. To make a long story short, the D.A. office is not going to prosecute. Originally, the prosecutor was hesitant about me (the mother) listening to the tape (as my son dies on the 911 tape) but said that my husband could listen to the tape. At the time, we needed to think about it. Now, I feel that by listening to the tape, I can get some kind of closure. After writing a letter to the prosecutor asking to listen to the tape and the reasons, he told me that after talking with his supervisor, they cannot allow me to listen to the 911 tape. This makes me think that they are hiding something. Do they have a right to deny this? I have found out that families do not have many rights but should I be allowed to hear my son's last words.

I think this might be another situation where a Freedom of Information Act inquiry might be helpful. Most states have such a law, modeled more or less after the federal legislation (5 United States Code, section 552). What you need to do is look up your own state law, which will prescribe the procedure. Because the investigation is closed, there shouldn't be any official objection to releasing the information, but this will be controlled by the applicable law. To make such inquiries easier, I am attempting to find a complete listing of state FOIA statutes; when I get them I will ask the POMC Webmaster to post them as part of the website.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------I need to know if I can know how to get information about my daughter's murder. The Prosecutor had promised me a copy of everything that involved her case including the blanket, tapes, videos, and all evidence. These things are very important to me and it's hard to explain to someone else. I have sent him several letters but no response.

As far as police records and laboratory reports, all of these materials should be available as soon as the trial is over. Until then, the prosecutor might be concerned that information might be leaked to the press, and end up causing unfair pretrial publicity.

If no one has been arrested and charged, the prosecutor may have good reason for not releasing to you actual copies of the reports. Set up a meeting with either him or the medical examiner (coroner); they should at least be able to answer your questions about your daughter's death.

If the murderer was charged and the trial is over, and the prosecutor still won't give you copies, you might have to proceed by the Freedom of Information Act. Most states have some form of this FOIA law, and the law itself will set forth the procedure. You can look up the law yourself at any public law library in your state. The people there can even help you find it. Then just follow the procedure.

As far as any actual evidence from the case, you may never have these items returned to you. Even after the murderer is convicted, it is often a good idea for the police to keep the evidence. There is always the possibility of an appellate court ordering a new trial. Even in these circumstances, the prosecutor might be able to at least show you the evidence from the case, depending on what type of evidence it is. While this might not be exactly what you would want, it is important not to compromise the criminal prosecution

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Hello, I have a couple of questions involving my brothers death. Well my brother was driving a car with 3 passengers who were his friends. He supposedly ran a stop sign therefore the police officer chased him. He parked the car and ran on foot from the officer. He was chased into a wooded area uphill by 1 officer. They said he ran out of ground and fell off off a cliff that was 44 feet. We are questioning alot of things involving the police and the procedures that were taken. Well the police wouldn't call on a search until 2 days after we filed a missing persons report and went to the state police. Also the officer that chased my brother told us a different story then what he told the press. It is also known that same officer made claims to get my brother no matter what. Also I have been told that if you die instantly you do not bruise, but the medical professionals and the funeral personnel told us that he died instantly and there was still alot of bruising on my brother. I'd also like to know how can we get the police department to let us see the pictures of the crime scene? They told us that they had taken pictures of the autopsy and other stuff, but when we asked to see them they said none were ever taken. Also the police officer that was chasing him said that my brother must have ran out of ground and ran off the cliff. But when we got my brothers clothing and shoes back he had clumps of blood on the bottom of his shoes. How is this possible? Also I'd like to know what to do with my brothers clothes and shoes to keep any evidence or DNA they may have on them? Thank you for your time and I will look forward to hearing from you!

Your inquiry raises several questions.

First, an apparent discrepancy between what someone says to the press and what you hear them say yourself isn't necessarily suspicious. Remember that reporters aren't perfect, and what people tell them isn't necessarily what they hear or report. This is simply human nature. Obviously, the officer might be covering something up, but one apparent discrepancy probably won't be dispositive of the issue. Whenever serious police misconduct is suspected, it is always good practice to refer the investigation to a different agency, and it sounds like this was done in your brother's case.

You also raise an issue about "instant" death. While it is possible to suffer severe injuries which cause death very quickly, there are actually very few deaths which are truly instantaneous. Life functions are complex, and usually do not cease all at once. Some injuries can cause an almost instant cessation of consciousness and brain function, and yet the heart might go on beating for a short time. Further, bleeding by the effects of gravity can occur after death, and can be difficult to distinguish from injuries which were sustained while the person was alive. In sum, the presence of apparent bruising after a fatal fall is not impossible. Only a thorough examination by a forensic pathologist can give meaningful answers. The pathologist's review of the scene might also provide answers about blood on the shoes.

Your last question is poses a problem: unless the evidence was properly preserved for DNA examination, DNA can degrade and the evidence can be contaminated from other sources. Modern DNA methods are so sensitive that even a few extraneous cells (that can be deposited in a sneeze or cough, or from dandruff) can contaminate a sample and lead to misleading or confusing results. The general rule is: KEEP THE EVIDENCE DRY AND COOL, AWAY FROM SUNLIGHT, STORE IN NEW PAPER BAGS OR ENVELOPES, and USE NEW DISPOSABLE RUBBER OR PLASTIC GLOVES EACH TIME WHEN HANDLING. If the evidence hasn't been properly handled and stored so far, it probably isn't worth much. Once evidence is compromised, any DNA found is likely to be the wrong DNA.

I hope this answers some of your questions, and I hope your investigation leads you to the truth.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------We live in a small rural area. In 1999, my mother was murdered. There was only one other murder that year. Some years there are none. This is a wonderful place to live with statistics like that. However, when it comes to experience within both the police force and the county prosecutor's office, it is frighteningly lacking. What can we do about this to make sure that everything possible is done? The case is still unsolved. We hired an independent prosecutor to give us advice. He was out of Kansas City, with a great deal of experience in murder cases. But the locals wouldn't cooperate with him. It's very expensive for us to do this with no cooperation. We need to do what we can afford for the most benefit.

I certainly understand your concern. It is indeed the case that the "best neighborhoods" often have the worst homicide investigations, simply because the agencies involved have little experience. I am concerned about the "independent prosecutor," however. I suspect that the reason he is getting no coorperation is because he has no authority. Criminal prosecution is legal action taken by the government, not private individuals or private lawyers. If you believe that your local authorities have dropped the ball, you may wish to contact POMC's Second Opinion Service. They specialize in reviewing such cases.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------How do I go about getting crime scene photos after a case have been closed? The lead detective said that they become property of the state and is unlikely that they allow access to them. My family is trying to get a private investigation done by an independent coroner and he needs the photos before he can make a complete assessment. Thank you.

This is a frequently encountered problem, and is best addressed through the freedom of information Act. While this was originally a federal law, most states now have adopted an equivalent provision. Basically, it requires government agencies to provide documents to members of the public upon request, while the requesting party is resresponsible for the reasonable costs of the copies.

-Brian Zubel, Attorney

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My brother was murdered on March 22nd of this year and the murderer was released immediately on a writ of habeus corpus..then posted 10% of 100,000 bond and beat his wife almost to death a few weeks later, then bailed out again on another 100,000 bond. He is pleading self defense, but I think it's despicable that a judge would allow bond to such a violent person.

He is supposedly under house arrest now, but he is free until trial and the DA is telling me that it's way to early to know what will happen.. but he is going to be happy with a minimum 20 yr sentence. I think he should get more... but now we are hearing through the rumor mill that the DA is planning a plea agreement for probation. He is pleading self defense even though my brother was not armed with a weapon and was killed at his apartment complex while under the influence of heroin.

My question is this: Are we screwing ourselves by hiring an independent attorney to check on the case and be our eyes and ears in the system? I try to trust what the DA says but he shows very little interest in our concerns and seems to to be setting our expectations as low as possible. The Victim's Assistant Rep has discouraged us from hiring an independent counsel and told us that this would only cost us more money and stir up the DA office. I am wondering if it is common to hire your own attorney to represent the victim family's concerns and make sure that DA is handling it in our best interests as well as the state's? We can not get victim's financial assistance to help pay of his student loan because they said he would have walked away...even though he was attacked by a man with a knife and had no weapon on himself. The DA tells us to wait and file a civil suit after the trial because it will hurt the murder trial more than it will help to include a restitution of his student loan. It really seems like we are being treated poorly because of his drug use at that time, he was just another kid doing the absolute wrong thing and did not deserve to be killed or have this trial be treated flippantly.

Thanks in advance for any kind of advice or information related to this!

I think the DA is simply trying to prevent you from expecting more from him than the system can deliver. He knows his jurisdiction and how juries respond to different kind of cases. No matter how skillful and hard working the prosecutor is, the outcome can NEVER be predicted. It is important that you understand what the problems are with the case, and all the different possible outcomes.

With respect to a private lawyer, I agree with the prosecutor. Wait until the criminal trial is over to pursue civil remedies; the last thing you need is for the defense to argue that you are only doing this for money. Right now, a private lawyer is likely to get in the way. A criminal prosecution is between the state and the accused; once this is resolved hire all the lawyers you want. God willing, you will get a favorable verdict in the prosecution. Under these circumstances you may not even feel like going forward with a civil case. Make your decision then. Good Luck.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Our 27 year daughter was killed when hit by a semi truck, while running partly nude across an interstate. Her clothes were found 52 ft off the road way, the man she was in car with was charged with sexual assault, attempted rape and manslaughter. The state attorney just allowed him to plea everything away except for the manslaughter, for which he was given 10 years probation, when the state att. started talking like he was going to let this man plea out we tried to hire a private att. and were told that we could not do that because it was the state attorneys job, there were no eyewitness to this but there was a lot of evidence that should have gone against him. I feel like we let her down because we could not make the state att. listen to us when we told him we wanted to go to a jury trial. I am so upset about this plea bargain. Is there any thing else we can do at this point? This state attorney just brushed her away like she was nothing. Why could we not have hired our own att.?

I don't think a private attorney could have done very much about the prosecution. While you are free to pursue a civil suit against the defendant ( as the Goldman family did against OJ Simpson) decisions about how and what to charge, and plea negotiations are all in the discretion of the prosecuter. Sometimes the only recourse families have is to resort to putting political pressure on their public officials. The sudden appearance of TV cameras and reporters can occasionally stiffen their resolve, but even this is no guarantee. The point is that our government is elected. Its too late to help in your daughter's case, but it might prevent future injustices if we had tougher law enforcement officials in office.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------An 18-year-old Napa woman was killed Wednesday evening after the van in which she was a passenger ran off Steele Canyon Road and repeatedly flipped.

Just prior to leaving the resort, Jamie and Maria had been at Jamie's parents home, drinking a bottle of wine with Jamie's mother, "Michelle" had bought for them. When they had finished the bottle, the mother had handed her daughter Jamie, a six-pack of beer, and the keys, to go up the road, and find a friend to follow her back to return the van to the resort. This road is really quite winding and hilly.

Maria Herlinda Rooney was pronounced dead at the scene after the ford van in which she was riding in the front passenger's seat crashed at about 6:50 p.m. The van's driver and another passenger suffered serious injuries.

As Michelle's daughter, Jamie was carved from the inside of the van, and my friend lay dead, awaiting the coroner, a CHP officer investigating the accident asked if there was any knowledge of alcohol, and Michelle admitted that she had not only bought it, but drank it with the girls, just before they left.

A California highway Patrol spokesman said the van was driving westbound on Steele Canyon at an unknown rate of speed when it ran off the road, struck a curb and flipped multiple times as it rolled down an embarkment.

Rooney was an employee of the resort, according to the county coroner. The cause of death hasn't yet been determined, an autopsy is scheduled for this afternoon.

A patrol spokesman said alcohol is suspected of playing a part in the accident. The driver was tested for alcohol, but results won't be ready for another week or two. It's not known whether any of the van's occupants were wearing seat belts. The safety belts had long since been removed, there were none to use. Jamie is unlicensed, and the van uninsured.

The van's driver was a 17-year-old Napa girl, whose name is not being released by the highway patrol. The girl suffered fractures to both wrists and her left elbow, major head trauma and a punctured diaphragm. She was taken to Queen of the Valley Hospital, but a hospital spokesman wasn't able to provide a report on her condition. Jamie is pretty banged up but expected to make it. Another passenger who was riding in the back seat of the vehicle, Jermiah Skaggs, 21 of Napa suffered a fractured pelvis and the concussion and was also taken to Queen of the Valley. He was reported to be in serious condition. Jermiah, was released today.

My question is: What kind of charges can be brought against the mother for her role in my friends death, and/or the injuries the others sustained? Is it likely that she will be charged, since she herself admitted in front of witness, that she supplied the alcohol and keys? And if so, what could she be looking at as far as being charged? They have been the major reason the sheriffs having to respond many times.

Seeing as the crash is still under investigation and critical evidence (such as blood alcohol level) is not yet available, it would be premature to comment on what charges might be brought. It will be necessary for the police to complete a reconstruction of the crash. Furnishing alcohol to minor is certainly illegal, but more must be known before any other charging options are considered.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Our case is #41 / Ref # 02-01 / Patrick F. Rutter, detailed on the Catch a Killer Page of the POMC website. My question for you is with respect to the protocol in an investigation of a suspicious death/alleged assault (as indicated on the death certificate). The initial investigation into the circumstances surrounding my brother's death was to our surprise abruptly & formally closed on Feb. 5, 2002 by the Chester County, PA Criminal Investigations Detective Unit.

In as much as the results of the investigation as detailed in a police investigative report we were provided, was a very thin and quick investigation in our opinion, I was able to bring our concerns to the County's Deputy District Attorney. After discussing multiple emissions of facts in the investigation that we had provided to the detective unit and the apparent overall lack of integrity of the investigation, I was contacted the next day by the detective originally assigned to the case advising me that the case was being re-opened. While that in itself is a very positive point for us, we maintain a concern that this is nothing more than a pacifier.

Is there any vehicle we can enlist to validate that "in fact" a proactive investigation is underway. After 30 days have elapsed, I called the detective, asking if there were any developments and was told that he had "conducted a lot of interviews in the past month, but had nothing more to report". I have requested a copy of the current police investigative report via a Freedom of Information Act request letter and did not even get a response.

As it is apparent that our efforts are not stimulating anything more than a pacification process by the county authorities, we were wondering if the PA State Police could become involved. Is that a viable alternative? Our thinking is that as the establishment where Patrick was discovered in a conscious, but relatively incoherent state had remained open and serving alcohol past the legal hours of operation in the state of PA, and in as much as the PA state police apparently run the State's Liquor Control licensing and enforcement that they would have ultimate jurisdiction in the case. Is that logical or incorrect?

Any direction you may be able to provide would be greatly appreciated.

With respect to your Freedom of Information Act request, it is not at all unusual or improper that you have not received the relevant police reports and witness statements. Most FOIA statutes contain certain exemptions, notably for police investigative reports in open cases. It makes sense that if such reports were not exempted from disclosure, anyone(even criminals themselves) would be free to compromise police investigations every step of the way. It is not the police activities need to be secret, but it is important that the statements of the witnesses not be divulged until all witnesses have been identified and "locked in" to their story.

Aside from this, and without knowing all the details as to what has been done, it would be impossible for me to comment on the thoroughness of the investigation. The question of any Liquor Control violations appear subordinate to your primary concern of whether Patrick was the victim of a lethal assault. My best advice is to stay in touch with your Deputy District Attorney; it seems that he is taking your concerns seriously.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My 22 month old granddaughter was killed Nov 15, 1999 in Indiana. Her death certificate list the death as manual strangulation, and blunt force trauma to the neck (fractured C5, C6 vertebra)- Homiacquittedter 2 1/2 years of defense delays, it finally went to trial. My daughter's ex boyfriend was charged with reckless homicide, and aquitted. He even admitted to pushing her down and holding her down on the bed by her little neck! Anyway, what else can I possibly legally do to keep this animal away from my grandson?

I guess I don't understand one thing: if he is only your daughter's ex-boyfriend, how does he have any access to your grandson in the first place? That notwithstanding, most states have procedures for obtaining restraining orders against individuals. In Michigan, for example, we have a law that provides for Personal Protection Orders. One other thing to consider is suing him in civil court. Just because he was acquitted of the criminal charges doesn't mean you can't sue him (the Goldman family was successful against OJ Simpsin).

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My ex-boyfriend was murder in Nashville Tennessee a year ago july 29th 2001. The trial is set for next month which I plan to attend, but my question is I would like to obtain a copy of the autopsy report and copies of the trial transcripts after the trial. How should I go about getting these things? Who do I ask? Do I ask the medical examiner,or the police in charge of the case,or the prosecuting attorney? I would also like copies of the hospital records, and the paramedics or emt's records which may or may not be a part of the hospital records. Any help that you can give me on this matter would be greatly appreciate.

The Medical Examiner's Autopsy Protocol should be available directly through that office (although both the police and prosecutor have copies as well). Any of these agencies could furnish you with a copy. As these are public records, they can be obtained under a Freedom of Information Act (FOIA) request. Because they are not public records, hospital records are more difficult obtain, however. Hospital legal departments are usually unwilling to release their files unless under subpoena. Because you are not a family member, I think you will have a very difficult time getting these.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------i do not know if you can answer this question. my son was murdered 1-30-2002, the police and the da's office have totally tried to cover this murder up and pass it off as a justifiable homicide. we got an attorney to retreive my son's belongings from the house he was living in where he was killed. this attorney originally talked about moral and legal responsibilities, wrongful death, etc. i passed every bit of information to him, who passed it on to the da's office. my question is " is there such a thing as legal malpractice?" in one of the letters the attorney wrote to the da's office he starts a sentence with " "my son's name" was the aggressor, but- " he was hired to represent my son's interest and our family and i do not think this is right to be phrased this way. he did nothing for us, once he knew the names of the influential people who were involved. i truly believe money and favors passed hands, to just shut down my son's case. between the 911 call and the suspects interview, the knife was in two totally different places. the boy's interview and the lead detective's report state he had a swollen "-----" forearm, and the picture they took is of the other forearm. this is like barney fife handled this, and no one considered that my son was murdered. please advise at your earliest convenience. i have not put my son's name as i believe they will go to any length to not pursue this case, and they may know of this website. thank you.

While it is difficult to comment not knowing all of the facts and circumstances surrounding your son's case, I can tell you that there certainly is a cause of action for legal malpractice. Prosecutors are a special case, however. In most jurisdictions, prosecutors enjoy complete immunity from suit for all actions performed as part of their official duties. This means that a prosecutor cannot be sued, even when they act in bad faith. From the way you worded your question, I was not sure whether you were thinking of suing the private attorney you hired, or the prosecutor. -Z

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My youngest sister was murdered in Turlock, CA on january 18 by a man who stalked her for over 8 months. The stalking started and continued in the state of New Mexico. As soon as she broke up with her boyfriend he started general stalking, following her to and from work, waiting for her at her gym. When we attended a family wedding in orlando he flew to my mothers house in Ohio and spray painted "PK is a WHORE" on my mothers garage door and then returned to Albuquerque to set fire to my sisters current boyfriends home. He then had them run off the road, passed out flyers with obscenities and my sisters cell phone number on it, made a death treat phone call to my mothers house saying "he knew where she is and there will be death in 2 minutes." All of this was reported to the ABQ PD as well as a restraining order filed. She finally fled to Turlock, CA and let everyone know of this mans existence. She attempted to file a restraining order put was told since no stalking had been done in turlock, they could not issue her one. He found her anyhow and shot her in the head dead! thank god he also killed himself. The problem i have is with the laws. Why do laws vary from state to state? Why was there no protection given to my sister from the ABQ PD, who already has reports on this man with a pat record of violence, harassment and public vandalism? They never even pulled him in for any questioning. Every law protected him and did nothing for her. I want the word out on the serious of stalking and the lack of law enforcement. Thanks for your help.

Your frustration with the Criminal Justice System's apparent inability to prevent crime is shared by many. One problem is that the Criminal Law itself is almost completely backward- looking; the primary focus is to arrest and punish individuals who have already committed crimes. There was a time when a person threatened with violence could ask a court to issue a "peace bond." The judge would take testimony, and if he believed the threat to be substantial, could jail a defendant in lieu of a cash bond (just like a defendant charged with having committed a serious crime). While most jurisdictions now consider this procedure obsolete, nothing has been created to replace it. Even restraining orders (like your sister was trying to obtain) are often ineffective in practice. A person so deranged and bent on violence that he is willing to kill others as well as himself is not going to be stopped by a piece of paper signed by a judge. If it were possible, a return to the old peace bond procedure would provide something of an answer.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------My youngest sister was murdered in Turlock, CA on january 18 by a man who stalked her for over 8 months. The stalking started and continued in the state of New Mexico. As soon as she broke up with her boyfriend he started general stalking, following her to and from work, waiting for her at her gym. When we attended a family wedding in orlando he flew to my mothers house in Ohio and spray painted "PK is a WHORE" on my mothers garage door and then returned to Albuquerque to set fire to my sisters current boyfriends home. He then had them run off the road, passed out flyers withobscenitiess and my sisters cell phone number on it, made a death treat phone call to my mothers house saying "he knew where she is and there will be death in 2 minutes." All of this was reported to the ABQ PD as well as a restraining order filed. She finally fled to Turlock, CA and let everyone know of this mans existencee. She attempted to file a restaining order put was told since no stalking had been done in turlock, they could not issue her one. He found her anyhow and shot her in the head dead! thank god he also killed himself. The problem i have is with the laws. Why do laws very from state to state? Why was there no protection given to my sister from the ABQ PD, who already has reports on this man with a pat record of violence, harassment and public vandalism? They never even pulled him in for any questioning. Every law protected him and did nothing for her. I want the word out on the serious of stalking and the lack of law enforcement. Thanks for your help.

I am sorry to hear about the loss of your sister. Your question can be answered best by one of the POMC legal advisors. What I can say is the domestic violence and stalking laws in America are taken very seriousley and all Law Enforcement bodies are suppose to do everything possible to prevent a serious crime such as murder. It sounds like there were many red flags up during the ordeal involving your sister. Contact one of our legal experts and be guided by what they say. I suggest that you also contact one of the domestic violence groups in your area for help and advice.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------When a case is closed is there any way for you to retain the physical evidence (the gun, spent cartridge, clothing, etc before they dispose of or return it to an alleged suspect)? Can you help? They have just closed my brother's case and I feel there is evidence that has been overlooked which they just did not test for which might still be available on these items!

Just because your case has been closed doesn't mean that the evidence will be disposed of. Without knowing all the facts it is difficult to say what will happen to the evidence. It is unlikely that any guns used in the cause of death will be returned to anyone. The only exception that I know of is, the gun was legal and the manner in which the gun was used was justified. The same pertains to the spent cartridges. In any event these items should have been photographed using microphotography. This type photography shows results of all ballistics examinations conducted and can be used in court at a later time. Clothing of the victim should be able to be released to the victims family if the crime lab has completed all trace examinations and the District Attorney feels it will not be needed for trial. Keep in mind that blood stained or fluid contaminated material is considered hazardous material and you may have some difficulty recovering it. If you feel the case has not been investigated properly you should contact the higher judicial body in your state and see if there is cause to reopen your brothers case.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------How much time is acceptable in delaying a murder investigation while searching for a witness that can provide information that is going to be considered heresay?

There are so many variables, it is difficult to give you a concrete answer. If the witness is critical to the case, it makes sense to wait. Going forward with incomplete proofs can be foolhardy; there is no such thing as re-opening a case after a not guilty verdict, no matter how good the "newly discovered evidence" might be. Also, the fact that a statement is hearsay does not necessarily mean that it is weak or defective evidence. Some types of hearsay are very reliable, and can add compelling evidence to a prosecutor's case.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I was wondering about why the District Attorney that has a case in front of him would want more evidence then they already have. I understand that the more you have the better. Yes I will say that most of it is circumstantial . But see my son Scott died in a fire on Feb 4, 2001 and wasn't found until Aug 27, 2001 the fire wasn't investigate very well {as you can see}. The C.I.D. and the fire marshal didn't get along and since the C.I.D. got there first and started the investigation. The fire marshal just took his report from that.So my son was in there all that time.And after that long of a time. They can't really tell me how my son died. And so much evidence was lost. Because the place wasn't secured or anything. We all know pretty much who did it. It was after all there house and they never told me that he was there. I told C.I.D. that he was with that person.Any help would be so nice. I'm going out of my mind not knowing if we'll ever get any where. One more thing the F.B.I. had some stuff sent away. To have some other people look at some stuff, do a profile on the kid . But that was a year ago. How long should stuff like this take. Thank-you for all your help.

Forcing a prosecutor to prosecute when he doesn't feel he has enough evidence is a virtual impossibility. The decision whether or not to charge remains his sole discretion. That said, you are not necessarily without a remedy. In Nebraska, your Attorney General has concurrent jurisdiction in all criminal matters. What this means is that if you can get his attention, he can prosecute your son's case instead of the local prosecutor. Join forces with the investigating police agency and approach your AG together. It might work.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------My brother was killed by a hit and run driver on May 17, 2003 in Myrtle Beach, SC. My family has had no luck getting consistent answers from the Myrtle Beach authorities. We would like to know: 1. We were told that SC law "assumes 'driving while intoxicated' in a hit-and-run. Does that mean that the driver should/would lose his driver's license for any period of time before and/or after conviction? 2. The driver and passenger (who was the actual owner of the vehicle) who hit my brother and then fled the scene and crossed several state lines, waited 6 days to turn themselves in. We were told that they voluntarily turned themselves in, but they were not charged or held in any way at that time. Why?? They were not charged with anything for another 9 days. 3. The owner of the car voluntarily cancelled his auto insurance before the accident. He is a resident of WV, which requires auto insurance. The car is still in his possession and being driven on a daily basis. Isn't the car evidence?? South Carolina authorities have never seen this vehicle first hand. Why hasn't the car been impounded? Thank you for any light you can shed on these questions.

it is not correct that South Carolina law presumes a person was intoxicated if they flee the scene of a vehicular homicide. To the contrary, under circumstances where there is no tangible evidence of intoxication, the appropriate charge would be Reckless Homicide. There is caselaw which indicates that a prosecutor may argue that "only an intoxicated person would refuse to take a breath test," but this would not obtain under the circumstances of this case as you have described it. Under South Carolina law, a person convicted of Reckless Homicide would have their license revoked for five years, aside from other penalties such as incarceration and/or fines. The delay in charging after the defendant turned himself in is not unusual. Frequently there is a delay while evidence is gathered and the case presented to the local prosecutor for review. Your last question underscores a serious problem. You are correct that the person should be charged for failing to carry insurance...the difficulty is that this is the responsibility of the West Virginia authorities. Likewise, the car itself is most certainly evidence; the problem is that South Carolina lacks authority to seize it in West Virginia (or any other state).

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I have a friend that was involved in a DUI crash and killed someone. If he has never been in trouble before, what are the min. and max sentences he could get?????

The answer to your question depends entirely on your jurisdiction; penalties for DUI causing death vary from state to state. In Michigan, for instance, the penalty has a maximum of fifteen years imprisonment. Various factors affect the sentence, such as sentencing guidelines. These take into consideration the prior record of the defendant, as well as any aggravating circumstances that may have been present. Whether the defendant was just over the legal limit, or several times the legal limit, for instance, would be factors considered by the sentencing court.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------We are parents of a lost son. His name was Ricky Lenn Dyer, Jr. In 1993, Storey County Deputies arriving at the scene of my sons' death, declared it to be a suicide five minuets after they arrived.
With two shots fired from a manual pump shotgun and all prints wiped clean, they insist it is still a suicide.
We have had experts in the fields of ballistics, witness interviewing, and criminal personality profiling look into this case, all rendering their expert opinions that this was a murder.
We have been working on this for ten years. The deputies only spent 5 minutes on the scene, they did not take any prints, they did not attempt to collect any evidence. We ask them to finger print the gun and the car... We also ask for a full autopsy and ended up with a medical report... In a nut shell , they didn't do their job. they have danced around everything, and I myself had to request an investigation. But none was done.
But the deputies were our friends before Ricky's death, and wasn't afterwards... We just can't understand being friends and than after his death wasn't............. We are asking ourselves, why wouldn't they be there in helping prove his death, instead of saying it's suicide and that's that.... One tried to get my husband in a car wreck... Something is wrong here..... There's more than this.. We have spent not only time, but every penny we have, we have lost our home, and have suffered deeply for our efforts. We have contacted many experts, and although everyone that views this case agrees it was not a suicide. Please review the website..http://community.webtv.net/Ydyer/RICKYLENNDYERSPAGE .. And let us know what you think...

From even the brief description of the facts you provided, it certainly appears that something is wrong. I have several suggestions. First, did you ever speak with your local prosecuting official? While you did not indicate in your email message where this occurred, your local prosecuting attorney or district attorney might be able to review the case independently of the sheriff's office. Many even employ their own independent investigators; this might be one way to get the objective "second opinion" you are seeking. Even if they do not have the staff to handle it themselves, your local prosecutor might be able to refer the matter to an investigative agency at the state level. If your local county level prosecuting official is no help, you might also try going to the criminal division of your state's department of attorney general. Finally, POMC has its own service which re-investigates unsolved murders; they can be contacted directly at the POMC website. Good luck.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I live in Ventura California. Why do you think the D.A. will not file a charge against my son's murderer of being a gang member? He is a known and documented gang member. He is being charged with first degree murder with premeditation and use of a firearm. My son was murdered in my home, while we were at work. The investigating detectives say there were no signs of forced entry, so they assume my son let this person in the house. Just to let you know- my son was also affiliated with a gang. I hope you don't think I approved of this, but I am not about to say that my son was an angel--he just didn't deserved to be murdered. He was shot in the back of the head multiple times. The case is going to preliminary hearings on February 24, 2004. My son was murdered on February 21, 2003. By the way the defendant admitted/confessed to murdering my son. Thanks for any feedback I receive from you. Thank you for all the hard work you do for all the heartbroken families.

The usual way to charge a person with being a gang member is under a Racketeering or Criminal Enterprise statute. While these can be very effective tools for law enforcement, they are complex to investigate, charge, and prove. Where a prosecutor has a solid case of First-Degree Murder (as here, where the defendant confessed to the crime) it makes sense not to tack on other charges, simply because the penalty would be less than that on the murder charge. The fact that defendant was a gang member may still be part of the prosecutor's proofs in the murder case, to show such things as defendant's motive or intent.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------We live in a small rural community called Franklin Kentucky. We are about 30 miles outside Nashville TN and yes the prosecutor is an elected official and not one of his minions. It's been a very disheartening brush with the legal system that we had before placed so much faith in. We're also scared to call attention to the case with media. The south is still pretty much a good ole boy system. All the judges golf together as do the attorneys. Our fear is if we try to force their hand we'll end seeing my brother's killer walk free.

I think your only option is the Attorney General. Based on your description of developments so far, it seems like some kind of heat needs to be generated under them.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My brother was murdered June 4th 2003 by manual strangulation. He left work early with a buddy apparently to go to the home of a guy he used to be friends with. The guy he was with said my brother knocked on the door it was answered by the guy he wanted to see and my brother immediately threw a punch and proceeded into the house. Of course a fight between the two occurred, but then a roommate(who also used to be a friend) entered into the fray. The two began to fight while the guy who opened the door to my brother went to the kitchen and got a knife and rejoined the fight. During the fight the knife was knocked out of his hand so he ran from he room to his room and got a gun which he held on the man who accompanied my brother while his roommate proceeded to strangle my brother. When the police arrived on scene my brother was lying on a deck with only his feet inside the doorway. He had been trying to get out of the house and away from his killer. His killer outweighed him by 50 or so pounds and is ex-military. According to what the police told us in the days that followed it was going to be an open and shut case the guy who did it was caught at the scene(his home)confessed, didn't seem remorseful, even said he learned in the army if you keep a sleeper hold on someone the person would sleep permanently. We go to the court room for the part of the trial to see if it would be bound over to jury and are horrified! The defense completely tears down everything the prosecutor and police say. The police and prosecutor has the names of everyone mixed up, they say my brother broke into the house, that he stabbed one of the guys, the killer ends up walking out of the courthouse that day on bail. While our family was detained by a bunch of state troopers and sheriffs deputies because they felt we were a danger to the defendant and the people who bailed him out. We were assured by the victims advocate that the state prosecutor would be on top of his game that the confusion happened a lot in the beginning. Well when it went in front of a jury to see how it would be tried he wasn't any better. We weren't allowed in for that part of it and found out later the killer would only be charged with involuntary manslaughter. My mother goes to see the prosecutor who tells her she should be glad he was able to get even that. That her son was in the act of committing a crime, by criminal trespassing, and that he doesn't even think when it goes to trial he'll get a conviction. After all the killer was just defending his property. And you can use whatever force is necessary to do that. My mother was crushed at his attitude toward the whole thing. Today we learned through an aunt who works at the police station that the prosecution still hasn't gotten all it needs from the police department nor has it gotten anything on the killers military background. Also since my mother confronted the prosecutor the victims advocate hasn't kept us up to date on anything that's going on. The only way we know anything that's going on is through the aunt at the police station. We actually had to read in the paper when the trial date was finally set. This is hard enough to go through without the bungling of an uninterested, uninvolved, states attorney. We don't know what to do. We keep hearing rumors about how my brother received a phone call before he left work early and that he was set up, and they planned to kill him all along. But no one seems to care. When my mom was in touch with the vic's advocate she would just nod and say we'll look into that. Is there anything we can do. I'm scared to death when this goes to trial it'll be the debacle the other hearing was. The prosecutor hasn't talked to anyone in the family or any of my brothers friends or anyone at work to shed light on the phone call, neither have the police for that matter. We're all half way scared to put a foot wrong with the police for fear they'll screw the case up even more. Their incompetence at the hearing was so demoralizing, I don't think my parents can take much more.

If the prosecutor is as incompetent as you describe, the only hope of a solution lies in going over this prosecutor's head. The problem is, depending which jurisdiction you're in, that may or may not be possible. In which state did this happen? Is the prosecutor handling this the local elected prosecutor, or just one of his/her assistants? If this is just an assistant prosecutor, of course you should go to his boss. If that leads nowhere, you might go try going back accompanied by the press and TV media. If your state has an attorney general's office that has a criminal division, go to them. You might be able to get them to step in and take over the prosecution of this matter. Act quickly; the prosecution cannot appeal after an acquittal.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My ex-husband murdered our two children seven months ago (they were 11&14) and is still awaiting trial. His father was able to obtain POA and has been managing his affairs. We shared custody and thankfully I was allowed in his condo to retrieve many of my children's belongings. The condo was recently sold and had held a significant amount of equity. I am still angry that I had to have a sheriff accompany me to go through my kids stuff and only had a couple of hours to take what I wanted. Thankfully I got some of their stuffed animals and memorabilia. What happens to the assets of this idiot? After his debts are paid... does the State of NH keep the $ for legal expenses?

Being a murderer, or even being convicted of being a murderer does not act to forfeit one's personal property to the state. While he will probably be required to reimburse the state for any court-appointed legal expenses, his property remains his. He will also have to pay any debts he has, as you suggested.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My 22 year old son was killed July 6th 2004 in Prince Georges County Md where he was born and raised, in front of his girlfriend,her 5 year old daughter and his 13 month old son.The person shot my son twice over what the news called a road incident, the suspect ran into the back of my sons car and fled the scene, when he did finally stop and my son got out and asked him why he left he shot him and fled the scene once again. My son was flown to local hospital but couldn't survive his injuries. The police and news media did an excellent job in their search for the suspect but unfortunately before they could find him he killed himself. He was 26 years old and had been in military briefly from what I was told by the police. I am very much still grieving for my eldest child and now trying to continue on to help raise his son. Someone told me that I should consider filing a wrongful death suit against the suspect even though he is deceased. My question is can this be done and if so what steps do I need to take to proceed?

The fact that the assailant killed himself does not preclude a wrongful death suit. What you need to do is find an experienced, reputable attorney in your area who handles wrongful death cases; your local Bar Association may have a list of possible referrals. I would suggest you speak with several, in person, before signing anything. Be sure to discuss fees, which should be a on contingency basis.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------MY QUESTION IS MY SON WAS MURDER BY HIS COUSIN. THE PROSECUTOR SAID THAT HE HAD TO OFFER HIM A PLEA BARGAIN. I SUGGESTED 25 YRS AS A BARGAIN HE OFFER 20 YRS. I REALLY WANTED TO GO TO TRIAL. THE PROSECUTOR STATED THAT HIS SUPERVISOR WOULD HAVE THE FINAL SAY AS TO WHETHER IT GOES TO TRIAL IS THIS TRUE. THANK YOU FOR YOUR TIME

It is true that the ultimate decision as to how to resolve a criminal case rests with the prosecutor. Many states now have crime victim's legislation that specifies the prosecutor consult with the victim prior to offering a plea-bargain, but the prosecutor still has the final say.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------HI, I have a friend whoes son was murdered this summer. He was hit by a pick up. The man driving the pick up admits he hit him. THe man claims that the boy was chasing a young lady with a knife (which was never found) and that he hit him to stop him from chasing the young lady. There are several things that make the whole scene look not right, but my question is: Why was the man driving the pick up not tested for drugs, alcahole, etc...? The dead young man was tested not once but twice but the man that hit and killed him was never tested for anything. ALso the DA has told the young mans mother that a murder case will never be closed. If he is looking at it as a murder case and the man admits he hit the young man, then why not charge him?

My first question concerns what the young lady being chased had to say about the incident. Did she corroborate the suspect's story about having been chased with a knife? The real question here is whether the circumstances justified the use of deadly force (in this case deliberately running over a person with a vehicle) in defense of another (the young lady). The law recognizes that a person may use deadly force in defense of another person who is threatened with deadly force, so long as their defense of the other person was reasonable under all the circumstances. Where there is a serious question as to what really happened, the usual course of action is to charge the murder and let the jury decide whether the defendant's use of deadly force was justified. In other cases, however, the circumstances may be sufficiently clear that the prosecutor decides not to charge, believing that the use of deadly force was in fact justified. When a person admits deliberately killing another with a vehicle, the issue is no longer one of possible negligence or intoxication. Was the suspect interviewed by police immediately after the incident? It could be that he simply exhibited no signs of intoxication.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------I don't know what any of my rights are concerning my sons murder. I know that the patholigist says he was placed in a ditch and did not die there he died from blunt force trauma to the back of his head the boy he was with claims he jumped from the truck he had no damage to him anywhere except his head (back) no broken bones no roadburn and no blood on the scene the damage to his head was very bad . I recently found out that in the beginning the police ran a article in the paper saying he did jump I asked them to fix it and they said no that no one believed it anyway. When I try to go public with what I know they tell me I will mess every thing up it has been 14 months and still nothing . I think they just want me to shut up and let everything go away but I NEVER will. I was actually told by the State police they were doing me a favor by looking at the case (the county asked the state to look at the case ) even though they have been involved from the beginning. There have been so many lies and problems from the beginning such as the first 911 call came in at 12;17 a, m. they told me the first one was at 7;45 a.m.the next day I proved it and they told me their spotlights were out but they were sorry!!!!! Then I found out they had already questioned a person with a red pickup truck earlier that day over my son but now they claim they did not know anything about a red pickup truck when I questioned them about it they claimed it was over another crime (meth related) we live in a very small town so I seriously doubt they would stop in the middle of a murder investigation to go check on a meth crime that there was not even an arrest made on this is just a few of the lies and problems there are many more but they keep telling me if I talk I will ruin the case and it will be on my shoulders then when I ask what they have they say nothing concrete. I also asked them if they had a problem with me sending it to pomc for a second opinion they say they would rather not right now I really don't know where to go from here but I will never stop trying to prove it if you can help me at all or tell me where to go from here.

Its difficult to advise you under these circumstances because its not clear to me whether the case is still considered open. Have you spoken directly with the detective in charge of the investigation? If he/she claims the case is still active, ask specifically what their next step is, and what still needs to be done. If their answers are vague, or they appear to be trying to just get rid of you, you might as well consider the official investigation closed. POMC's second opinion service would then be an appropriate next step. The problem is that if the official investigation really is still ongoing, the POMC team won't get anywhere; even the Freedom of Information Act won't get them into the police files.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------my son was in my opion murdered my neighbor threatened him two days before his accident he the neighbor told my son he was going to take him out it happened my son lived for twelve days after the accident the local sheriffs office handeled things the officer on sceen knew the driver the officer allowed the driver to drink a soda and eat a sandwich and chew and swallow chewing tobacco the driver addimeted drinking three hours later he was given a breath test the accident is still under investigation at this time this happened in august of 04 my sons helment was never taken as evidence there is rumers that the driver hit my son with a crow bar in the head before anyone arrived on sceen there is a mark that could be from a crow bar i have talked with my local attorney generals office tom called the states attorney and confirmeded that the driver was known to have gotten away with many crimes tom told me they know he is guilty but they need hard evidence they dont want to go in court with what they have now if you have any advise please help me get justice.

From the way you have described the facts of the case it would appear to be premeditated murder, as opposed to DUI causing death. Under these circumstances, the fact that the on-scene officer allowed the perpetrator to eat/drink soda/chew tobacco would be of little importance.
Your state's attorney appears to understand the circumstances and also appears to be on your side. The question remains whether anything is being done by the police agency to gather additional evidence. Do you know the name of the detective(s) assigned to the case? You should contact them directly and find out what they are doing, if anything. If they claim that the investigation is ongoing, ask to see their latest report on the case. If they won't, or if they show you a report which is quite old, you will know that they consider the case closed. Under those circumstances, a call to POMC's second opinion service would be your best bet.

-Brian Zubel, Attorney

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My daughter was murdered on January 25, 2002, in NY. The investigation continues strongly, making history in that it is still very active. No arrests to date. My questions are:

1. Am I legally entitled to a copy of the autopsy report or at least read it?
2. Should I request this report from the Medical Examiner's office or the police?
3. Is there a law you could reference for me to read regarding my rights to this report so I may have the knowledge if I am refused the report?

I have spoke to the detectives about obtaining a report and they are not totally against it but would rather I did not read it. They are concerned to a point about my emotions, but I believe it is more due to my knowing it's content during the investigation. I have not pushed the issue to the point where I have said I want to read it at such a date and time, so I am just pacified. My instincts tell me that if I do push it to that point they will give me some reason I can't have or read it, which is why I need to now my rights, in case I need to exercise them.

I have also expressed my wanting it to the District Attorney and the response was "Though I may have an objection to you having a copy at this time, I do not have a problem with you reading it. I will speak to the detective about it and get back to you." Getting back to me consisted of "the detective is adamant about you not reading it."

I have called the Medical Examiner's office and just inquired about the procedure to obtain an autopsy report and was told I need to contact the Health Department for a copy, that the originals are sent there. (?)

At the same time I am concerned that if I do get this report it will not be a complete one, may be just a record to pacify me.

I am sorry about the situation with your daughter. Your legal right to see the autopsy protocol is controlled by the Freedom of Information Act. Almost all states have some form FOIA in place, and while these laws create certain rights, there are also some exceptions. Notably, authorities are exempt where disclosure might compromise a pending criminal investigation. From what you have described, the legalities are not the cause of the hold up, however. Apparently there is real concern over the emotional impact this will have on you. Try contacting the Medical Examiner directly and explain that you would like to review the findings with him/her. That way they would understand your concerns, be there to explain the report, and answer your questions.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Would you talk about pretrial hearings and tell me if it's important for the victim's family to be on the same page as the DA at this time? If confessions were said to be given in a hostile location (jail), is that a reason to suppress the confessions. Two men murdered our son and stole his truck and possessions. The next day they were arrested for a robbery. They had our son's truck with them when they were caught. The reason they were caught for the murder was because a witness, the girlfriend of one of them, came to the police station and told the police what the men told her about the murders. She said they wanted our son's truck and stabbed him multiple times in the face and neck and beat him brutally. The police told us what she told them. If the confessions aren't suppressed, will they have to be tried separately? Can past records be used at the hearing? They also claim they were under the influence of drugs at the time of the murder and three days later when they confessed in jail. Thank you for your input.

It is always important that the Victim's family be fully advised of what happens in court. Pretrial hearings involve a wide range of proceedings, all the way from mere formalities to crucial decisions regarding evidence and procedure.

In your son's case, the admissibility of the confessions is obviously vital. The fact that a confession is made while in police custody is only one factor considered by the courts. The ultimate question is the voluntariness of their statements given all of the surrounding circumstances. Considering that they had been in jail for three days rather puts the lie on the idea that they could have been high on drugs when they talked.

One great piece of evidence is the girlfriend's statement. They certainly can't claim that she coerced them into admitting to her what they did. Even if they tried to minimize their culpability in their later statements to police (as murderers often do) the case should be quite compelling at trial.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------Does the prosecutor ever go into detail with the families about what happened, and don't we have a right to see the file on our childs' murder.

The simple answer is yes, the prosecutor should take the time to go over the case with you and answer all of your questions to the best of their ability.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Our daugher was killed in 1996 at the age of 23..In 2002, her ex-husband and in-laws were all 3 convicted of the crime and now are in maximum security. The oral arguments for the Appelate Court are coming up this next week. After this court rules, and if it is denied and goes on the the Supreme level ,we have a "wrongful death lawsuit" that has been pending since the trial and gets renewed as needed in the court. Do you feel that these(wrongful death) are beneficial? We have our daughers 11 year old son to raise and feel he is owed money, etc to be able to get college education, etc. Since our daugher did not have a will, our grandson has been an award of the state and lived in several foster homes, etc. etc. We just got custody of him in Oct. of 2003...(that's another very lengthy court case) but feel he should be granted something. Am I wrong in thinking this way?

I don't think what you are doing is wrong at all. Our legal system does precious little for Homicide Survivors; perhaps your wrongful death suit will help your grandson to a better education

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------Why won't the DA tell us much and how long will it be before we see the crime scene photos and the file on our childs murder case? We feel we are observing like everyone else in the courtroom and are fed up with it. OUR CHILD WAS MURDERED and it is hard enough as it is, if you can offer ANY response it would really be appreciated.

The best advice I can give is for you to emphasize to the DA (or his/her boss) how important it is for you to view the materials. Police and prosecutors sometimes assume (wrongly) that they know best what would be upsetting to Homicide Survivors, when in fact not knowing everything can often be worse. Set up a meeting where you can actually sit down with them and discuss your need to know. Another alternative is to contact the Medical Examiner's Office...sometimes they have specialized staff to help address these types of questions. Good luck.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------I recently contacted you regarding whether we should file a "wrongful death lawsuit"....My lawyer says there is one on file for our grandson because of the loss of his mother that will be pursued for him after the remainder of the appeals are over in the murder case. It is at the appelate level now. Our grandson's appeals are all complete in the juvenile court with us having custodial and guradianship rights.
Now our lawyer is saying what do we suggest he ask for in the lawsuit....These are some of the things I felt were proper and I need you to critique if you could??
Loss of benefits for the child as his mother (our daughter) was divorced and she carried his medical benefits so that he might have proper medical care. It is more difficult to get children seen at the Dr. office when they have no insurance, etc. and are on medicaid benefits.
He has suffered mental pain over this tragedy...has nightmares still sometimes and there is possibility that he was present when his mother was killed. He has repressed feelings and is in counseling for that which is very expensive.
Loss of care, companionship, protection, and love from his real mother. I know this doesn't involve us, but we are going to have to keep maintaining an income since he lives with us .. My husband (Kolten's grandfather) will be 65 years old soon and he will need to continue working instead of retiring.
We feel God has given us this boy to raise as we have raised three children already, but the stress levels run pretty high sometimes and I'm sure it bothers him also. Thanks for any help you might give me.....I probably am way off track on understanding what to present......

Okay, this is a tough question. It deals head-on with the Law's inherent limitations in making people whole again. Homicide Survivors aren't suing over an employment contract or business deal gone bad. How could anyone try to put a dollar figure on a daughter, mother, friend...? Unfortunately, money damages are all the Law can provide. The types of things you discuss in your inquiry at least provide the base line: loss of income, out-of-pocket expenses, etc. But things like pain and suffering certainly count more than a lost source of income. Generally, the more intangible the loss being compensated, the greater the amount. Your civil lawyer should have some idea of what the courts have upheld as judgments in similar types of cases; the prayer for relief should be tailored accordingly.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------I need help in sloving a murder case. i have evidence that the nurse murder my husband on july 11,2001. i found new evidence on april 4, 2005 the evidence is a pillow with a hand print and mouth print and teeth print and tong print with blood drops on the pillow i need help in getting this tested for finger print also up in the because i found two hair pins and i don't know how that got up there. The nurse may have used this on him, also test the light glass becasue it might have the nurse finger print on it.

You should not be attempting to test evidence in a murder case on your own. It should be turned over to the police immediately.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------One month ago a 2 month old girl was murdered by her father. He was charged with Capital Murder and his bond was set at $250,000. Now I know his family, and they don't have that kind of money, but somehow they are paying $10,000 to do a second autopsy on the poor little girls body, and a few days ago, someone posted this man's bond. Trust me when I tell you that they do not have that kind of money. My first question to you is: Could it be possible that this man's lawyer is putting up all of this money, just because this is a high profile case? If so, then why?! My second question to you is this: This man has not even entered in a plea yet, and he has already been bailed out. How long will he stay out if he follows all of the regulations (i.e. no contacting the mother, absolutely no contact with children, also under house arrest)? My only concern is this, if he is supposed to stay out until the court date then what happens if he tries to come after the mother? He is out and free! That is just not fair! Any information you can provide me would be much appreciated.

As to your first question, I have no idea who these people are or where they get their money. With respect to the bond, as long as the conditions are satisfied he will remain out of jail. In murder cases it is customary to cancel bond upon conviction and remand the defendant to jail, but some judges choose to continue bond until sentencing. The judge's decision regarding bail involve considerations such as the risk of flight and the danger presented to the community. I assume that the prosecutor argued these points to the court when bail was set.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Our daugher was murdered at the age of 23, 9 years ago. Her ex-husband and both his parents have been tried and convicted of the crime and on appeal it has gone through the appelate court and is now ready to go to the Supreme court, but all convictions hold so far. My question for you is...We have our daughers son, who has been in foster care, etc. etc. We got custodial rights and guardianship rights to him almost two years ago...FINALLY. His aunt (father's sister) is trying to get rights to him, etc. If you were proceeding on with more permanent rights to the child (now 12) would you stay with the custodial and guardianship rights or do an adoption?? Would the adoption be more permanent? And what about the financial support in the way of medical we are getting now? Looking at all the angles, what would be the safest and smartest thing for us to attempt now that most of the court hearings are behind us. Our grandsons hearings are done. They were done causing him to finally be placed with us two years ago. Thanking you in advance for any help you can offer us. We know we have to get our lawyer to do the final step for all of this, but he is kind of leaving it up to us to decided WHAT to do at this point. We just don't know what the most sensible thing would be and know we could make some serious mistakes and don't want to do that....Thanks

These are important questions, and are largely dependent on your state laws regarding termination of parental rights. From what you describe, only a temporary wardship has thus far been created. I know that in similar circumstances in my home state of Michigan a child can only be adopted once the original parental rights have been terminated. Where, as here, one parent has been convicted of murdering the other parent, winning a permanent wardship is straightforward. This may not be the case given your state laws, however. Retaining a lawyer who specializes in child protective proceedings/termination of parental rights would be your best bet.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was murdered on September 20, 2002 in Daytona Beach, FL. He was just 21 years old. Last year on August 2, 2004, the man that murdered my son was convicted of murder and sentenced to life in prison without parole. My family felt that this was a good decision. The second person was sentenced on October 29, 2004 to five years in prison and 10 years on drug probation. They still have my son?s personal items and I was told that I am to send a letter requesting them returned to me after one year which probably would be October 29. The only thing that really is bothering me is that I don?t know what really happened that morning. The police informed me that my son was driving around and he knock at the murder?s door. I asked if my son knew this man and was told he didn?t know either one. The apartment that my son knocked at was on the second floor with the stairs off to the side. The time of his death was between 4 and 7 o?clock in the morning. I am from PA and wasn?t able to attend all the hearings. They didn?t want the man to make a statement. He was asked if he murdered my son and the answer was yes. Is there anyway that I can find out what both of these individuals told the police what happened that morning? I know my son and he won?t just knock at a stranger?s house. I feel he was setup by someone. The police won?t elaborate. When I would ask questions they would stray from answering then. Can I get a copy of any statements made by them? How do I go about doing this?

I am assuming that because two people have already been convicted and sentenced that the police consider the matter closed. If it is, the police reports and witness statements should be obtainable through your state's Freedom of Information Act. It is a relatively simple procedure to make a request. Check your FOIA statute at your nearest public law library. Many county courthouses have them, as well as law schools, and the staff may be of assistance in locating the appropriate provision. It is then simply a matter of drafting a letter to the police agency.

-Brian Zubel, Attorney

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My son was brutally murdered and mutilated in Maya 2004 and the trial is scheduled for August 8, 2005- less than three weeks away. Upon speaking with the prosecuting attorney last night, it is clear that she wants to plea bargain and not go through a trial. They have a statement/confession from the killer and she still wants to accept a plea from the defense. It should be noted that the defense has offered to plea. The prosecutor has no interest in this case and simply want to dispose of it as quickly as possible. This is completely unacceptable to me and my family and are trying to make our voices heard. We demand a trial.

My 18 year-old son was savagely killed in his apartment. I found him and it was the most gruesome scene imaginable. The detectives, medical examiner, crime scene investigators and funeral director all said it the worst scene they had ever been witness to. The prosecuting attorney wants to plea down to a simple manslaughter charge with a simple 15 year sentence. Sir, I can assure you that if my sons death does not warrant a murder charge, then none do.

I am asking you what I can do to insist on a trial and not an insulting plea bargain. The only reason she is pleaing is because she doesn't want to deal with the the time involved in a trial. That is the truth. The murderer is the child of a ex-Cleveland Cavaliers basketball player and has been and will be in the media. I get the very real impression that she is afraid to do battle with high-priced attorneys and fail to secure a seemingly sure conviction in the public eye.

I just can not let a butcher like my sons killer walk free in 15 years without so much as murder conviction behind his name. I am sickened by the lack of dignity I am being treated with and my lack of a voice in this matter.

What can I do IMMEDIATELY to force a trial? The deal may be struck anyday and I can't live with that. I hope you can advise me ASAP.

The situation you describe is very troubling indeed. The difficulty here is that the prosecutor has discretion to pursue the disposition of his choice. As the parent of a murdered child, you are certainly the aggrieved party in every moral sense. In legal terms, however, a criminal matter is framed in terms of the state versus the defendant. As the state's attorney, the prosecutor has final say in the criminal case. Which does not mean you are without a remedy...you still have the option of pursuing a wrongful death action against the defendant, regardless of what happens in the criminal case. A famous example of this was in the OJ Simpson case. Even after the defendant was acquitted, the parents of the victim were able to prevail in a civil wrongful death suit. While it is not the same as a criminal conviction, this option may still give some sense of vindication for the terrible wrong that was done.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was killed by a gunshot wound to the head on June 15, 2004. His girlfriend, who was present, claimed it was suicide. The police took her word for it and did a very limited investigation. I was left with many unanswered questions which I took to the First Assistant DA and the detectives who worked the case, but the meeting proved to be a waste of time. I am currently working with a private investigator and we were able to acquire some of the crime scene photographs. The pictures raised more "red flags". I intend to go to the DA himself and ask that he review all of the evidence and hopefully convince him the next step should be a coroner's inquest or the grand jury. Do I seem to be on the right track? My goal is to see my son's girlfriend questioned again. If my efforts prove futile with the DA, is there any type of lawsuit I could bring against the girlfriend? I was told a wrongful death lawsuit against her would be impractical since she has no assets that would make such a lawsuit worthwhile for an attorney to pursue. I would appreciate any other ideas you might have.

You seem to have your bases well covered. One other thing for you to pursue is whether any of the other crime scene evidence was preserved and/or tested. In particular, the girlfriend's clothing, as well as any nearby furniture, bedding, drapes, even walls, should be checked for fine droplets (aerosol) of blood. It might not even be visible to the naked eye. This has the potential for yielding an enormous amount of information, and might help to confirm or refute her statements.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------my son was murdered my his girl friend her one of her friends, and a nephew and brother. i know exactly who they are,except for the friend. I have called the police in Hidalgo,Texas Where his body was dumped in a Parking lot.The police enforcement know these people because they were always in and out of jail. When i called the Det. assigned to my son's case he told me that i was wrong that the person that killed my son was fled to Mexico. But the Det is wrong My ex husband knows the parents of the persons and they assisted them to flee to Idaho ,so that they wouldn't get caught. How can i get the Det. to listen to me, and to check the information i have to give them. One of the boy's Saul is in jail in Idaho for a stabbing.(which is how they murdered my son). My ex-husband is a friend of the father, and was there at their home when the father received the phone call telling them what they had done to my son.the father told my ex- everything right after he got off the phone with the mother of these people. Then my ex called me to tell me what had happened, or god knows when i would have found out about my sons murder. now my ex won't help me. because he didn't raise our son, He doesn't want to get involved. with all the information that he know, he can help me bring these people to justice. Can i file charges on him for withholding evidence on a murder? Please if you have any advice. thank you

Under most circumstances a person is under no affirmative duty to report a crime or come forward with information they may have. A notable exception, of course, is in the case of leaving the scene of a traffic accident. The reason these cases are criminalized is because of the special obligations imposed on individuals choosing to operate vehicles on public roads. Just because a person is uncooperative in a murder case, however, does not mean that law enforcement is powerless. The traditional value of the Grand Jury is as an investigative tool; it has the ability to compel a witness to testify. Some states even have prosecutor investigative subpoenas, which have all the power of the Grand Jury at a fraction of the expense. Whichever procedure is used, witnesses properly summoned are obliged to testify fully and truthfully, or be jailed in contempt.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My daughter was found on Sept. 12, 2005. She was identified on Sept. 13, 2005 by her dental records, most likely her body was under a bridge in a pool of water for 5-7 days. There are two people who have confessed. My question; the D.A. said to us,"I do not represent you (family), nor do I represent your daughter, but I do represent the State on New Mexico". I was stunned, as he believes that one of the defendents wants to plea-bargain, and he hinted that the D.A. may consider this, "what ever is best for the State". Can you please explain this to me? How can he represent the State but not the victim nor the family's best interest?

His statement is technically correct, although it certainly reflects a certain degree of callousness on his part. Legally, a criminal prosecution is between the state and the accused; the victim is described as being the complaining witness. This means that the state and defendant are the parties to the lawsuit, and the victim "merely" a witness. The harsh reality, of course, is that the victim has as much or more of a stake in the outcome than even the defendant. Usually prosecutors are more sensitive towards the feelings of victims, and consider themselves their advocates. Sadly, not all public servants are created equal.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------The two people that have confessed to my 16 year old daughter's murder have been in jail as of 09/05. I was told by the D.A. that the jail staff has let the two people get together and "talk" two separate times, even though there were strick orders to not let them talk together. Since then, the two confessors have changed their stories. As a parent, I asked what I could do? I was told that I could attend the jail's board meeting. I have since called the jail manager and left several messages to be put on the agenda. She has not responded to any of my requests. This is typical for this town, but I will not give up. My question, what other strategies could I pursue other than meeting with the jail board? I am lost as to what my rights are as I have never paid attention to the protocal of addressing my concerns regarding the jail system. But for the sake of my daughter, I want to pursue any process that is my right to make a formal complaint of the carelessness of the jail staff. I appreciate your feedback. Thanks!!!

As a practical matter, the fact that the contact between them can be documented reduces the potential problem. Their previous statements were presumably preserved in some way, so when they try to change their stories later they can be impeached. The rules of evidence also permit their original statements to be used against them as substantive evidence. The law of evidence recognizes that people with a motive to lie will often do so...when, suddenly, defendants have new stories which are remarkably similar, and it can be shown that they had an opportunity to talk, the clear inference is that they are lying.

-Brian Zubel, Attorney

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My husband and mother-in-law were murdered by a tenant of my mother-in-law two years ago in New Orleans. The killer was indicted on first degree murder charges, but he died in prison shortly before pre-trial hearings were due to occur. The killer's wife, a school teacher, was indicted as an accessory after the fact. She has offered to plead guilty to a misdemeanor. I am willing to agree to this - given that much of the police evidence was lost in the Katrina storm, and the court system is a mess - but only on certain conditions:

1) that she agrees never to teach again - Question: can I enforce that she prove this to a parole board, and that penalties apply if she violates this; and Question: how can I determine if she is currently teaching anywhere (is it a violation to teach when under indictment?).
2) that she pays restitution of her pension (with a value of about $50,000) - Question: I understand a pension cannot be applied until the person accesses the money. Can I set an amount independent of her pension? Does a judge have to agree to the amount a person pays?
3) that she drop any plans to sue the local prison for 'wrongful death' of her husband. Question: Is this possible or negotiable?
4) that she provide a signed statement of her knowledge of her husband's acts. Question: Is this possible or negotiable?

Let me answer these in reverse order.

Number 4 will necessarily be addressed at the time of the plea of guilty. In order to plead guilty, a defendant must waive their privilege against self-incrimination and state on the record what it is they did wrong, and the judge must be satisfied that what they admit constitutes a criminal offense.

Number 3 is tough. The prison isn't a party to the criminal case against her, and it would be against good public policy for a government to offer leniency in a criminal case in exchange for immunity from suit regarding other parties.

As to number 2, if she agrees up front to the terms of restitution you want, the Court should enforce the agreement.

Number 1...I have no idea. There may be Louisiana laws which are directly controlling on the issue.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My daughter was killed by her mother's live-in boyfriend. I want to know if there is a civil case possibility although this person killed himself? If not is there any liability with the state or city because he was a felon?

Just because a murderer commits suicide doesn't mean his estate can't be sued. His estate is still answerable for his civil wrongs even after his death.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was killed in car accident. When the first police officer arrived on the scene, he did not look in the car to see if anybody was in there. He seen foot prints on the ground so he took for granted that the person had gotten out of the car and ran away. Several witness told him that someone was still in the car and he never bother to look in the car. The car plunge into a Lake with the water being about 3 - 5 inches high. The back of the car was still on the grass and from what I have heard, the front of the car had not went under the water and the Police Officer was still able to approach the car to see if anyone was in there but he didn't. The Fire Department arrived and they didn't approach the car neither. Finally and hour later after the Divers arrived they approach the car and pulled my son out. My question to you is do I have legal rights to sue the police and fire department for negligent or was they within their rights not to approach the car and wait until the Divers arrived to see if anybody was in the car?

From the facts as you set them out, it would appear that your son was killed in the car crash. If your son were already dead, any delay by the police officers in going into the car after the fact would be of no moment. It is always difficult, however, to comment on the viability of potential lawsuits without a full knowledge of all the facts. You should gather together all police reports, witness statements, and Medical Examiner's reports, and review them with a competent plaintiff's attorney.

-Brian Zubel, Attorney

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My son was in his 20's when he was shot dead by several tribal officers 10 seconds after being maced continuancely by 3 or more tribal police. He was standing in front of his house and he had no weapon and made no threats to anyone when they arrived, The tribal police came to his residence after the girlfriend called the tribal police because of a verbal argument. The police arrived and seen Lance and began spraying mace and shooting their guns. Shortly after the death of Lance LaRue Cameron, the tribal officers that shot him dead were fired from the Fort Mojave Indian Tribal Police Department and work as security officers in Laughlin, NV.

Can you send me some information about what options I have as a mother of a murdered son and what my rights are.

From the situation as described, it would appear that no criminal charges have yet been filed. While it is difficult to comment on the merits of a case without knowing all of the details, the fact that the officers were fired after the incident certainly supports a conclusion of wrongdoing on their part. Has the matter been investigated by the FBI? The federal government and tribal authority have concurrent criminal jurisdiction, although the feds usually prosecute the serious crimes which take place on Indian Lands. The first thing to do is contact the FBI.

Also, you can institute a civil lawsuit against the former officers as well. This was ultimately the only way in which the victims in the OJ Simpson case finally achieved a measure of justice.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I am from Louisiana and I need to know who do I need to contact about a report I received from a Crash Investigator from the Police Department that has a lot of discrepancies in it? I know this for a fact because I was at the site to witness some of the things that isn't true in this report for myself and I have several witness to verify the other information that I wasn't there to witness.

The report itself should indicate who wrote it; if you have information which can shed additional light on the case you should contact that officer immediately so that he can prepare an additional or amended report. If that information is unavailable (or the officer's signature is illegible), contact the investigating police agency and find out which detective has been assigned to the case.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Currently, I feel that I have no or very little support from the DA attorney. My daughter was murdered one year ago. To make this simple and to the point, the assigned DA makes every attempt to avoid us, the family. During the most recent trial (bond hearing), he was the first to tell the Judge to let the defendent out on bail (it was like he gave up, for me, it was very discouraging to see this, I now believe that he does not care), then he literally rushed out of the court, not making any attempt to talk to us. This behavior happens at every court hearing we have had. We are long way to the trial. Another thing, New Mexico crime lab had sent the evidence to a private lab, no one followed up on this, and the evidence stayed on the "shelf" for one year, simply because no one paid the bill. I questioned the main detective, her response was that it was the crime lab's responsibility. Overall, my family and I are very unsatifsfied with our current treatment of our tragedy. Yes, we do have a victim's advocate, in fact, the DA's secretary e-mailed her and stated that the advocate will be the primary and only person who will keep us informed. Actions like this makes us feel that we are isolated and can only depend on one person to be our informant, there is no evidence of a team effort. I am frustrated that the system, here, allows victims to be treated like this. My questions:
1) We will be meeting with our assigned DA and his boss, we want to request another lawyer. How can we suggest this so they will HEAR us?
2) What and who can we contact in regards to the neglected evidence? I would like to see a consequence to this, because, now the trials are set back. At present, it will be forwarded to the FBI for further investigation.
3) What can I do to create a change with the system in our State and County?

If this were a civil case (a case in which you were suing for money damages, for example) you could just fire your lawyer and hire a different one. In America, prosecution is handled by government agencies; you can't pick and choose among them, or between the lawyers who work for them. I don't know why you are receiving the treatment you are, and I wouldn't even try to venture a guess. All you can do is try to work with the elected officials to get the best representation on the case you can. The fact that you are having a meeting involving the bosses at the DA's office is a positive step.

If that still doen't work, remember that "the squeaky wheel gets the grease." And a squeaky wheel going public sometimes gets even more. You could try contacting your local TV or newspaper; many have some kind of "action line" to address situations where ordinary folks have been frustrated by the system.

As for changing the system itself? Remember that we only get the government we vote for, and pay for. November elections are fast approaching; try supporting candidates who care about victims. You might also be concerned about expanding funding for the prosecutors. Since 9/11, more and more law enforcement money goes to "first responders." That means police and fire departments. Nobody in this country is willing (it seems) to raise taxes, so while more is spent on police less is spent on prosecutors.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I live in Colorado and two years ago my 3 month old grandson was killed by his father. (I am the maternal grandmother). A plea was accepted and he received 70 years which was the maximum under the deal. He was sentenced last June. Last month there was a reconsideration of sentence hearing and the judge reduced the sentence to 58 years. With the reconsideration hearing just last month - I can't seem to get out of my head that I want to look, see and read all the evidence for myself - I seem to have so many unanswered questions and don't want to keep relying on what other people tell me - I want to determine for myself what really happened. Am I able to contact the DA and ask to go over the evidence? Do I have any legal rights to be able to do so if the DA doesn't want me to?
Any information you can offer would be appreciated.

Your desire to know is perfectly appropriate; you should contact the prosecutor directly and set up a meeting at which you can go over the materials. I suggest a meeting because the prosecutor already knows everything that's in the file and can help speed your search. In the unlikely event that he/she is uncooperative, you can pursue your rights under the Freedom of Information Act (FOIA). Now that the case is concluded, there is no reason to withhold evidence from you.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------My son and his fiance were murdered in florida in 1999. Joh R. Ballard the one that murdered them was found guilty by a 12 member jury and sentenced to death. How can the supreme court of florida overturn that verdict and let a suspected serial back out on the streets. He is also a suspect in other murderes. I am hoping someone can answer this question for me. Thank you

Not knowing the facts of your son's murder, nor the basis for the court's ruling, I really cannot offer an explanation as to why the conviction and sentence were overturned. Many different factors are considered in the criminal appellate process. These include everything from Due Process issues, such as whether improper prosecution argument deprived the defendant a fair trial, or whether evidence was witheheld from discovery, or whether the trial judge improperly instructed the jury on the law, or improperly admitted or excluded certain evidence at the trial, to Search and Seizure issues, such as whether the fruits of police searches should have been suppressed. If you can send me a copy of the court's opinion I would be happy to review it for you and explain what happened and why.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was killed in February 2006 in Coffeyville, Kansas. He was in a bar where a friend was taunting a man. When my son was standing at the bar, with his head down, the man came over and hit him one time on the side of his head. My son died instantly. The man was arrested, charged with involuntary manslaughter and was released two days after on a $1,000.00 bond. The bar had a very sophisticated video camera, so everything was caught on tape. After 9 months 26 days, we finally went to sentencing. The judge gave the guy 32 months, HOWEVER, released him. Set up guidelines for him to follow for one year, at that time the case will be reviewed. The incident happened in Kansas, the man lives in Oklahoma. The judge told him he had to pay the family 10% of his paycheck every pay day, not go in a bar, not drink and be sure he left his address and phone numbers. The man travels to different cities and states with his job. He was not placed on probation – no specific instructions as to how all this was to be done. We were told to turn all expenses into the Victims Advocate Group to be reimbursed. How can the judge set up guidelines when there is NO ONE to monitor this guy? We feel the judge has misled all of us and this is not a fair “sentencing”. We know he can’t be tried again, but WHERE ARE OUR RIGHTS? This guy got away with murder, when it was in black and white what happened! WHERE IS JUSTICE AND PEACE FOR THE VICTIM FAMILY?

Where is Justice, indeed. What you have described is what happens when public officials aren't doing the jobs they were paid to do. Justice happens when qualified, honest, hard-working people make up our government. But all too often our government is made up of the mendacious, the ambitious, the incompetent, the vain and self-centered. Men and women whose obligation to the People gets ignored in their scramble to advance personal agendas.
Have you ever voted for a candidate just because they belonged to a particular party, or had certain political affiliations? Have you ever voted for a candidate even though you had not researched their personal and professional qualifications? Have you ever been otherwise occupied, and just too busy to vote? We all have. As a result, we have the government we deserve: the one we elected.
Where is Justice? It resides in us...We, the People. It is our collective will, if only we will it. It is our obligation to ourselves. You are correct: our Constitution prohibits retrial after the defendant has already been charged, convicted, and sentenced. But our Constitution also vests in the People the Right to change a government which does not serve their will. So, what are we willing to do about it?
Not every wrong presents an appealable issue. Apathetic prosecutors and uncaring judges do hideous damage to Justice, as you have experienced firsthand. If they're not doing the job right, vote them out. You might not be able to correct every past wrong, but you do have the Power to make a difference for the future.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Is it normal when a witness gives a statement to the investigator stating that he was there while my son was being murdered that only two of several names given have been questioned. The day the witness gave his statement the investigator took it to the DA. This was two months ago. One of the two enterviewed was caught in a lie. She said she was there and did see my son but said she left at 8:30. There is no way she seen my son before 10 pm because he was not there until after 10 pm. He was at a friends house who works for the Sheriff's dept. until 10 pm. We are so worried that our son's murder is trying to be covered up because our local police dept. botched the crime scene in the beginning. My son was beaten then his body was placed on the railroad tracks to make it look like an accident. Several of my son's personal items including his cap that had blood on it was found in front of the home where we know he was murdered. Our locals didn't even look around the residence where my son was which was just about 125 ft. from the railroad tracks. All they did was go question the guy (my 3rd cousin who I will call Ben). Ben said my son was on drugs and drunk and left walking toward the tracks at 11:30 pm. Ben is a 3 time felon who was just released out on parole in Feb. 2006 he served 4 of 8 years for beating his girlfriend nearly to death with a hammer.
My son's car was parked in the driveway of the residence why would he walk? The police searched my son's car for drugs. My son did not do drugs, he may like to drink a few beers with his buddies on occasion but thats it. No autopsy was ordered and we were being told they were waiting on the results of the autopsy. When we found out no autopsy was ordered AFTER OUR SON WAS BURIED. We had him exhumed....Oh, there was no drugs in his system. besides he had just been given a drug test a couple days prior by the Sheriff's dept. before being hired. Why will they not question those who was there when my son was killed? Please respond to let me know what I should do. This happened in Waskom Texas...Harrison County.

The problem of small and/or inexperienced police departments mishandling homicide investigations is very real. You indicated in your letter that county officials felt the investigation had been mishandled. Have they gotten involved? If they haven't, talk to the Sheriff...perhaps they still can. Have you contacted your state's attorney general? While the role of state attorney general varies from state to state, they represent the supreme law enforcement agency at the state level. They may be able to intervene in a meaningful way. It sounds as though you are still early enough in the process where some redirection of effort may yet lead to a Just result. Good luck.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was murdered on 4-12-06. The person that murdered my son is in prison on a parole violation. No charges have been filed for the murder yet; No witness have come forth at this time. What can I do to keep him behind bars. People are afraid to come forth but i'm not afraid to fight for justice. What can I do? if this person is released he will just kill again.

If there are witnesses who won't come forward out of fear, the police and prosecutors have few options. If the witnesses with knowledge can be identified they can be taken before a Grand Jury, which can compel their testimony. As a practical matter however, many witnesses who are afraid will still not tell the truth. If there have been specific threats against specific witnesses, those responsible can be charged with witness tampering. Getting threats locked up can have a real positive impact on fearful witnesses; I have seen considerable success using this approach.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My daughter was murdered in Dominican Republic. Both parties were found guilty and are serving a 30yr sentence in DR. Since we do not speak the language there, we hired an attorney to represent our family at the trial, and also hired a translator. We also had help from our congressman and the US Embassy. We asked for and received copies of the confessions made, along with the autopsy which was done in DR, and of the judgement (last page only). Unfortunatley all of our copies are in spanish. At this point I really don't want to read the confessions, but feel we should have translated copies in case of parole (allowed after 15years in that country) or other circumstances. I want to be totally prepared. How can I have these documents translated? I have asked the Embassy for help but it doesn't seem like it is available. We also had a lot of trouble communicating with our attorney there, so I don't think that would be much help.
Thank you for any advice you could offer.

Get a good lawyer who is fluent in Spanish.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My X husband commited suicide and murdered my son by carbon monxide using his vechile. His girl friend at the time he was living with called me and told me the night before he left with Zachary and left a note (suicide well I called the police and they came to my house to get all the info and at the time I only lived down the road from the police station and I told them to issue an Amber Alert because my son was in danger and they didn't issue it. I have been trying to contact attorneys to see if they will take the case possibly suing the police for not issueing an Amber Alert and not looking for him. I had told them about 3 different locations they could be in and they where found in 1 of them. What do you think about this? I have all the police records and the note and the newspaper artlice because it was in the paper and on the news and I have an estate open still. Please help thanks so much.

If your ex-husband murdered your son, why not sue his estate in a wrongful death action? He was the cause of Zachary's death, not the police.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------What is the differance between 1st degree murder and 2nd degree murder?

The distinctions between first and second degree murder were created by statute. The English Common Law from which our legal system derives recognized the crimes of murder and manslaughter, but did not specify degrees of murder.

As such, the definitions of first and second degree murder actually vary from state to state. In general, first degree murder requires the presence of aggravating circumstances, such as premeditation and deliberation. Consistent with this, murder by deliberate poisoning is usually defined as first degree. Some states also include as first degree murder killings which take place during the commission of specified felonies, such as sexual assault and robbery. This is known as first degree "felony-murder." Some jurisdictions also define as first degree murder the deliberate killing of a police officer.

There is also a distinction between first and second degree murder with respect to penalties. In death-penalty jurisdictions the sentence for first degree murder may be death. In non-death-penalty states, first degree may be punishable by life imprisonment without the possibility of parole, while second degree may be punishable by any term of years up to life. Because the laws vary so much between jurisdictions, these are just generalizations. For the specific statutory distinctions in your state, check with your local prosecutor or district attorney.

-Brian Zubel, Attorney

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My daughter was murdered by her boyfriend (he injected her with heroin) and he confessed to the murder on the night of the confession I understood that they told the murder that they would charge him with second degree murder if he the (murder) would tell the police who sold him the drugs... My understanding is the murder told the police where he had purchased the drugs (however as of today's date no one has been arrested for the sale of the drugs). Within a couple of days of his confession he went to court and was charged with Murder in the Second degree (F2) and Unlawful distribution, Schedule 1 substance (F3).

The next court date the Deputy D.A. reduced his charge to Manslaughter Reckless (F4) and reduced his bond. The murder also appeared in court that day with 5 other charges not related. One of the charges was a misdemeanor and the Judge at that time indicated that he would drop that charge because it was a misdemeanor.

At his last court date the Deputy D.A offered him another plea bargain if the murder pleated guilty to the F3 he (DA) would drop all other charges. When the Duputy D. A. called me in to talk to me about his plea bargain he had already offered it to the murder and the murder had his court hearing while I was talking to the Deputy D.A.

My family and I talked to the Deputy D.A. after court and the end result was: he made the final decision and he would charge him with what he thought would stick.

I don't understand how the Deputy D.A could make such a decision and be so indifferent to a persons life...The murder confessed to the crime and the Coroner's report states: Manner of Death: Homicide. I have also spoken to the police and they have informed me that they feel they have a solid case against the murder. The police have indicated that the dose of heroin was not normal...according to this person they had spoken to regarding the doses.

I understanding the murder has 60 days to except this plea bargain...I want this person to be tried for the death of my daughter and I do not know what I can do now. Please help me. How can I get this person tried for murder now!

The problem you have run into is that homicide survivors such as yourself are not legally a party to the murder prosecution. Criminal cases are captioned: the state versus defendant, not the victim's relatives versus defendant. One of the most difficult things for homicide survivors to accept is that they do not control either charging decisions, plea negotiations or trial strategies.

That said, have you tried going over the deputy DA's head? Ask for a meeting with the DA and make your feelings known; see what he says.

Prosecutors are government officials. While we would all hope that our elected officials will do what we want when acting in their official capacity they do not always do so. If the DA doesn't listen to you, your only recourse is the same that we all have when dealing with any elected official: the voting booth and public opinion.

If all else fails you might try to bring pressure on the DA by going to your local newspapers and TV stations.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Hi my daughter was murdered almost a year ago. There has still not been any arrest made. There are a fwe things I have asked the det. several times and they will not give me a answer such as the approximate time of death. Dont I have the right to know those types of things. I live in CA

As the case is unsolved, the detective may be reluctant to release details that only the killer would know. As they used to say during WWII: "loose lips sink ships." Try to be patient.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------If the murderer had an aggravated assault on his record, but it was appealed and removed in 2004 – leaving the murderer to lie on the stand that he never arrested, never assaulted, or had his read his rights prior to murdering my son in 2007 during his testimony – getting only reckless homicide with 29 days of jail and probation of 12 years, how can someone get away with murder and is there anything I can do now? My understanding wrongful death lawsuit can only be done within a year. The murder of my son occurred on March 10th, 2007. I just found out about the aggravated assault charge in June 2009, and it being closed in 2004 from the appeal court when I called to see if the murderer had filed his appeal to reduce the charge of reckless homicide. The murderer is hoping to get it off his record and go back to school to be a teacher – can you believe this? Apparently, the person thought I was writing a letter of support and informed me the aggravated assault charge had been closed in 2004. I had assume the murderer would be in prison and felt getti ng thru the trial would be hard enough and the murderer only worked part-time as a pizza deliver person for $6 hour. I didn’t want to waste my energy suing him; but now, I feel I let my son down. The lies and damage the murderer did on the stand was like my son was murdered all over again. The murderer and his state appointed attorney went on Inside Edition (aired 5/26/09) to get blood money for paid interviews which my request on the victim impact statement for the murderer not to profit from his crime. The murderer is paying $25/month for 60 years for his court fees which he is trying to get those off his plate. He makes me physically ill. The murderer even lied on the pre-sentencing report which I brought to the attention of the judge requesting perjury charges, but no reply was given to me. Should I complain to?

You are always free to make a complaint about an attorney. Simply being dissatisfied with the outcome of a case is not grounds, however. The question is whether the lawyer (or lawyers) breached some ethical duty. I understand that you are upset with specific rulings that occurred throughout the process, as well as the outcome. Is there some indication that a lawyer did something corruptly or incompetently? If there was, then you should certainly file a complaint.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------The DA office knew how to locate the murderer’s wife & failed to call her as a witness. How can you have a love triangle trial if one party is murdered, the other is lying to get off, and the third party is not called as a witness? I believe they didn’t want to use the funds to bring her in to testify. If she was made to testify, the evidence of the aggravated charge would have came out in the court room, isn’t that incompetent for the DA not to bring her in and claim they didn’t know where to find her when they knew how to find her but chose not to. Is it corrupt if the defense attorney knowingly gets his client to lie on the stand? If his client had been arrest for aggravated assault and appealed the charges - removing the charges off his record – is it okay to lie and say he never been arrested? If witness went to the grand jury and testified taking the charge from 2nd degree to 1st degree murder charge and then, the DA failed to call him as a witness – is this ethical? If the murderer claimed lied on his pre-sentence record stating he quit drinking in 2006, but on the stand he testified after murdering my son in 2007 he brought a six pack to get the nerves up to kill himself with an unloaded rifle – would that be perjury? Everything this guy wanted he got – drugs in his house – thrown out – aggravated assault charges removed in 2004 – probation given? To me the entire system is corrupt.

Well, now we're running into some limitations concerning my knowledge of Tennessee law. For centuries, the there were two legal impediments to calling a spouse as a witness against an individual: spousal privilege and marital communications. Without knowing all the facts of your case (or the evidentiary law of Tennessee) I cannot comment beyond saying that there may have been very real legal reasons why the prosecutor could not call the defendant's wife as a witness in the trial.

With respect to lying in one's own defense at trial, a charge of perjury cannot be sustained. As a question of Constitutional law such liability would be too great an intrusion on the fundamental right of the accused to testify in his own defense. As to misstatements of fact in a pre-sentence report, a charge of perjury could only be sustained if the statements were made under oath, which I rather doubt was the case.

Please don't let my comments discourage you from pursuing any remedies you choose against the lawyers involved in the case. My point here is that trials are not simple fact-finding procedures...our Constitution, rules of procedure and rules of evidence emphasize that there are other, supervening interests.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My daughter was murdered by her mentally ill boyfriend. His illness was pre-existing. He is currently in a state hospital, incompetent. I believe that he is mentally ill. My question is: After so many years of being incompetent, I was told we may have to "make some decisions." What does that mean? If he is found NGI, can he be sentenced to a mental hospital? I was told that if he is incompetent for 5 years OR if he is found NGI in a trial, he will basically be free...He may go to a hospital, but he can leave when they say he is better. Is this a state decision? Or is this a national thing? I guess I was naive enough to think that the crimianlly insane got sentenced to a hospital rather than a prison. I am mainly concerned about the saftey of others if he is let out.

Before I venture too much opinion, let me preface my statements by saying I don't know which state you're from. It can make a difference. In my state - Michigan - Not Guilty by Reason of Insanity (NGRI) means the perpetrator's custody and status becomes a largely a question for the doctors. The "not guilty" part means they aren't sentenced; they are ordered for treatment. The idea under our state law is that NGRI defendants are hospitalized and treated as necessary to prevent them becoming a threat to themselves or others.

If there is good news here, it has been my experience that the truly dangerous mentally ill don't get released, at least as long as they are truly dangerous...they get treated in hospital under proper supervision.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------Please tell me, as regards to federal laws and/or State of Michigan laws, under what circumstances could a police officer or police officers be charged in the death of an individual?

The answer to your question really depends on what the circumstances are. Many different situations can give rise to criminal charges where a police officer has killed a person.

Under Michigan law there is premeditated murder and felony murder, which both involve deliberate killing under aggravating circumstances, and without legal justification or excuse; these are both murder in the first degree. There is also also second degree murder, which lacks the aggravating circumstances of either premeditation or the commission of one of the enumerated felonies necessary for first degree. There are many situations involving negligence which might lead to criminal charges, such as negligent operation of a motor vehicle, drunk driving, and negligent discharge of a firearm. Where a police officer has used unreasonable or excessive force in subduing or arresting someone, that could be charged criminally as well.

Police officers can also be charged under federal law. By way of example, the police officers responsible for the beating of Rodney King were ultimately convicted federally for depriving King of his civil rights.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My nephew was murdered June 6, 2008. I have a friend who is training to become a 911 dispatcher. During one of her training classes, the instructor referred to a recent murder that happened on the same street and the same location as my nephews murder. The 911 operator put a "hold" on the call - obviously the lesson was not to let this happen. I know in my heart that this 911 call involved my nephew. The thought that someone "dropped the ball" saddens and infuriates me. Could he have survived? How long did he lay there bleeding before someone came to help? How would a family member go about getting copies of 911 recordings? Do I need to consult an attorney? I do not want to tell my brother about this until I know what happened. The investigators are waiting on DNA and it is an ongoing investigation. I just wanted to know if these tapes are accessible and what do I need to do to find out what exactly happened. Was it a matter of seconds, minutes, hours???? Any information would be helpful. We live in Texas.

As this is an ongoing criminal investigation, your chances of obtaining copies of the 911 tapes at this time are slim. While most states have a freedom of information statute, material pertaining to an ongoing criminal investigation is exempt. You might obtain this information informally by approaching the detective handling the case, but if he refuses you really have little legal recourse at this stage of the proceedings.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------Here I am, after another long sleepless night, unable to suppress the sorrow and heartbreak of my sister’s death -- spending another night re-hashing the 101 things that don’t add up to her death, trying to find answers or at least acceptance that will provide some semblance of closure and missing her so much. But, yet again, I come up empty.
My only sister, my big sister, my only sibling, my best friend and my biggest champion was found dead July 11, 2007. Her death occurred almost three years ago now, yet at times (when I allow it to surface) it seems like it just happened last week. She was found dead by my parents in her and her husband’s house. A place that I don’t understand her being in since three weeks earlier, finally after two horrific years, she had left her husband of 16 years and had moved into an apartment. Finally leaving a husband that, to others, was a ‘great guy, well known and liked in the community ’ but, come to find out, a complete monster subjecting her to physical and verbal abuse behind closed doors. A man I still need to pretend is a 'great guy' in his presence or any place where my true feelings may get back to him, all in order not to lose contact and access to my sister’s daughter who was only 11 years old at the time of my sister’s death. I promised, that no matter what, I would never allow him to keep me from my niece and that I would always be there for her and in her life. One of my last promises to my sister, based on her biggest fear that he would never let my family see my niece if anything happened to her, was that I would watch over my niece. The reason I keep up the façade with him is because I’ve seen the consequences – my parents have not been allowed access to my niece since my father voiced his belief to my sister's husband that ‘he had something to do with her death’. I know my parents could petition the courts for contact but they have, out of love, opted not to put my niece through that ordeal, living on the hope that once she’s 18 they may be able to renew a relationship with her. I think, in part, not wanting to put my niece through more trauma and knowing my sister felt that, even with the pure hatred her husband had toward her, he was a good father, is the reason I always stopping pushing for information or pursuing answers. My father, one of the most even-keeled, solid, good individuals I’ve ever known, believes with all his heart that her husband killed her. It eats away at me not doing all I can to understand what happened to my sister and doing right by her, especially if he had anything to do with her death. But I haven't pursued things full force in order to protect my niece from what would be such immense trauma of not only losing her mother but finding out her father possibly had a hand in it and because of the potential of losing access to her. Unlike my father, I am not sure, based on what little I’ve been able to learn from the police, if her husband killed her but I do think he had something to do with it hurting her in a way that may have attributed to her death. My sister’s death was ruled an unattended death that was initially investigated as a homicide by the local police (North Andover, MA) and the Massachusetts State Police but was ultimately closed as an accidental death due to a fall – something that took me months to find out from the local police, even though I was told when I would call or email the detective that the investigation was on-going, until, finally, I was told they stopped the investigation a couple of days after her death because someone had come forward saying they had seen my sister at a time when it was impossible for her husband to be involved as he was out of town on a business trip when her body was found. I have tried numerous times, through multiple avenues to get information on my sister’s death and the investigation that was conducted but with no success. Each attempt has been frustrating and, up to this point, futile. In my attempts to gain information I have:
· Called the Massachusetts Medical Examiner’s office, called the individual in the office who performed my sister’s autopsy, spoken to the legal advisor of the ME’s office, Lisa Riccobene, only to learn that, in the state of Massachusetts a husband’s rights supersede the rights of blood relatives, including the victim’s parents, in having access to the autopsy results – even though she had left him, acquired a restraining order against him the year prior to her death and had gone to the North Andover Police Department to inquire about a restraining order two weeks before her death. I had asked the police, after learning from the Detective that she had a hip injury and a broken wrist, if the autopsy could determine when the injuries occurred and if the injuries occurred prior to the head injury that ultimately led to her death as well as if it could show whether she sustained a concussion. I asked this because of an incident that my sister emailed my parents about in the April prior to her death where she told them that her husband had grabbed her by the wrist, thrown her to the ground and proceeded to kick her repeatedly. During the same timeframe she emailed a message where she said that being with him gave a new meaning to ‘Until death do us apart’ from their wedding vows. I also wanted to know about a potential concussion because of a conversation she had with our mother the day before she was found dead where she said her husband was ‘in and out’ of the house, even though he was on a business trip. I also wanted to know because it would provide an explanation for why she didn’t call me when she typically called me, no matter the time of day or night, if something was wrong and she would track me down by any means possible if she couldn’t reach me.
· Contacted the Massachusetts ‘Attorney of the Day’ for guidance – Response: file a request with the Public Records Division.
· Made multiple calls, emails and visits to Dan Cronin (Daniel G.), the North Andover detective involved in the investigation. Each time I received conflicting information or little to no information. Finally he communicated the case was closed. It was closed, determined to have been an accidental death from a fall and again, the case was apparently closed two days after her death, based on someone stating they had seen her the day before we think she died – this came as a surprise after speaking with him over a period of months and being told ‘they weren’t giving up, and thought her husband was a ‘piece of work’ and they were aware of the domestic problems having previously responded to a domestic violence call at their home. In terms of the manner of death, I was first told she had fallen in the family room then told she fell down the front foyer stairs – my parents found her at the top of the foyer stairs where she had bled to death from a head wound.
· Placed two calls to Steve O’Connell, spokesman for Massachusetts District Attorney Jonathan Blodgett’ts office. Response: someone will call you and help you with your request; no call was ever received.
· Called the State Police Crime Unit, where I was told my request would be personally walked to the head of the unit and I was directed to Trooper O’Neil who had been in charge of the investigation and had secured the scene when it was thought to have been a homicide. I had initially spoken to him shortly after my sister’s death to find out about the investigation. He told me the procedure that was involved and, that, because of the amount of blood all through the house and an appearance of someone having attempted to clean the blood up, they processed it as a homicide. He told me various members of the crime unit spent over seven hours gathering evidence and processing the scene. He also told me that there would be an autopsy conducted. My father, who had called 911 upon finding my sister, was interrogated for over 3 hours. I don’t believe the police ever even spoke to my sister’s husband, even though, while her death was being investigated as a homicide, he was contacted by the police and told to return immediately from his business trip because he was a ‘person of interest’ in my sister’s death . Upon his return, he spent six hours (according to him) cleaning the house (even though the police had brought in a company to clean) before going down to Cape Cod to tell my sister’s daughter that her mother was dead. I believe this to be true because I was told by Detective Cronin that my sister’s husband never came by the police station or called to find out what happened. Supposedly the State Police were processing evidence at the house until 10:00 pm and my sister’s husband returned to the house at 6:30 am the next morning (he called me as he was entering the house upon his return). In that period of 81/2 hours I don’t understand how the investigation could have been completed to the point that he was no longer a ‘person of interest’. I was also told by the Detective that the only contact my sister’s husband had with the police department was to call days later to find out when my sister’s diamond engagement ring would be returned to him.
· Made a visit to the North Andover police station (I live in Florida) to request information I thought I was entitled to on the investigation. I was told they did not have any files related to the case and that I would have to call the State Police. I called the State Police and was told I needed to go to North Andover Police, that they had the files. That same day I went back to the North Andover police station with what the State Police told me and was told yes, they had the files but the Chief of Police would not release any of the information they had to me. I called Trooper O’Neil after my last visit to the North Andover Police Department to try to learn more about what happened and request information on the investigation, and with no background or introduction by me, he had full recall of the case and basically told me to drop it.
Gone to the District Attorney’s office. There I was told there was no one was available to speak to me but I was handed a 'Request for Information' form and told I could fill that out and maybe information would be released to me. Every month I pull out the form, read it, and I attempt to write my request, only to put it away without completing it.
I truly appreciate any help that may be available, even if it’s just help in how to best phrase my request in the District Attorney’s ‘Request for Information’ form so that I may possibly increase my chance of getting information. I have thought of retaining an attorney or a private investigator to look into my sister’s death but feel it is useless without having something concrete, something other than my thoughts, unanswered questions and suspicions to have them review my sister’s death and the investigation that was performed. I owe this to my sister, regardless of the potential consequences. Please help me.

I think you already have your answer as to what you should do next. You have synthesized a tremendous amount of information concerning the suspicious circumstances surrounding your sister's death. Write to the District Attorney and explain those circumstances, in detail, just as you have done here.

The police and Medical Examiner are never the last word; the prosecutor is the chief law enforcement official within a jurisdiction. The prosecutor is in a unique position to recruit specialists in the various forensic sciences, as well as order and even conduct additional investigation. Complete that form and submit it, and make it complete.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------My brother John and his friend were murdered four years ago on June 2, 2005. Three men confessed and were convicted of murder and waved their trials. They were all sentenced to two life terms plus ten years. Does my mom have any chance at a civil case. John was married but his wife wants nothing to do with anything relating to the murders. My mom wants John’s three children to have college funds and thinks she can sue them for a large dollar amount. If a civil case is ruled in her favor how can any money be collected. The murderers are in prison and I doubt they have any significant savings.
I don’t know what tell my mom…I think it would cost her more money to peruse this than it would pay out.
I thank you in advance for any advice you can give.

Suing them and even winning is easy. As you noted, however, collecting anything will be the difficulty.
It is still worthwhile, however. You never know...one or both of them might inherit money at some point, and a civil judgment against them would enable you to go after those funds.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My 3 year old nephew was murdered this year. He live in a different state than I do. A man was charged with aggravated manslaughter for his death. I want to know why not some sort of murder charge or something with a stiffer sentence. My questions for you are. Can I contact the prosecutors office? Would they discuss anything with me? How much info do they have to share with his mother? From what she tells me they haven't really explained anything to her. Is there ever any instances where the prosecutor should have charged someone with a higher charge someone gets the charges uped? Thanks for any info you can give me.

As a relative of the murder Victim, I think most prosecutors would be more than willing to discuss the case with you. Charging decisions are within the discretion of the prosecuting officials, but most Crime Victim Rights Acts provide a mechanism for family members to discuss these decisions and have their questions answered. Depending on the status of the case, the prosecutor might still be able to increase charges, and sometimes such action is taken. Not knowing how far the case has progressed, however, I would not delay in contacting them.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------My question is the main person of interest was on parole when my son was murdered, my son's cap finally came back from dps lab with two other DNA's on it besides my son's. I made sure I let this information out to the right person so the person of interest would find out. You see, his DNA is not in the data base yet and he did exactly what I thought he would do. He cut his ankle bracelet off and fled, the warrant for his arrest was issued back on Aug. 10, 2009. We have strong reason's to believe his girlfriend was there with him the night he murdered our son. I had a cash reward posted for information leading to his arrest, finally a good tip came in a few nights back and he was arrested at his grandmother's where his girlfriend also lives. Everyone believed he had been staying there all this time but police said they had to have a solid lead before they could go search the property. This makes sense to me but what don't make since is how they could not arrest the girlfriend and grandmother for aiding and abetting a two time convicted felon. I believe if they arrest the girlfriend investigators may be able to break her and get her talking about the night our son was murdered. Is it common not to arrest the people hiding a felon who also has a prior of aggravated assault with a hand gun and aggravated sexual assault to a female under the age of 18 ? This guy's dad is a former investigator for the county in which the crimes all have been comitted. I'm trying to figure out how I can get them to arrest the girlfriend. The sad thing is he will probably eventually kill her too because It is known that he abuses her.

From the outset, I think it is important to keep some aspects of this case in perspective...which can be difficult whenever it involves the murder of a loved one.
I don't know all the facts of the case, so all I can do is comment on the fragmentary information I have available.
First of all, DNA found on a hat band is notorious for being potentially misleading. Hats get passed around...a lot. Just because a person's DNA profile is found on a given surface doesn't mean they're a killer, or that they have even met the killer. DNA does not sign a guest registry indicating the date and time and circumstances concerning how it got deposited. DNA can get left on "evidence" months or years before the crime ever took place. Or months or years afterwards. The point here is that DNA evidence is not the panacea TV shows would have us believe.

Yes, the circumstance of a parolee cutting off his tether and fleeing is suspicious...or it might not be. Individuals who have been through the criminal justice system often have a conditioned, knee-jerk response to being under suspicion by the police. They run...not necessarily because they are guilty, but because they think they are a target..."one of the usual suspects." Police are trained to focus on ex-cons, and many police investigators refuse to take no for an answer. I'm not being critical of the police. This is simply the harsh reality I have learned after 25 years in this business.

As to getting the girlfriend and grandmother arrested and "breaking" them, I think we have to remember that we we still have a Constitution and a Bill of Rights. To me, what you have suggested is sounding dangerously close to vigilante justice, which means no justice at all. My advice is to leave the police work to the police. Getting involved in putting information out into the community intending to elicit some response from specific individuals could be construed as interfering with a police investigation. Step back from this now; otherwise you may end up doing more harm than good.
In all of this, I wish you Justice,

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Two years ago, our son, Brandon, was assaulted, kidnapped, tortured, stabbed, and burned to death. We are thankful for the two convictions. However, we are reaching the 3yr. limit in our state to file a wrongful death suit. There is no money for any legal council, and no money to recoup from the murderers. Is there anyone out there who would do a pro bono case for us, or give us some direction? Unless we are not aware of all processes, it seems to be easy, as they have been convicted. It's a principle and a promise we made to Brandon; to do everything we could. It is an affront on human decency, to know that their money accounts are full from contributions from family, while we struggle to make ends meet. It seems we could set a precident by winning a civil suit and claiming any monies sent to them. Maybe this is already being done. As ever, the murderers have all the rights, and victims have few.
We would be ever so thankful for any ideas.

This is a tough call, because many lawyers might look at the prospect of taking a few dollars out a prisoner's account as not justifying the effort. Remember that there are many cases out there where terrible injustices are going unaddressed, simply because there aren't enough lawyers doing pro bono work available.

Perhaps you could approach some of the larger, big-name lawfirms in your area. Sometimes big lawfirms do pro bono work for the favorable publicity they receive.

-Brian Zubel, Attorney

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I live in Phoenix, Arizona. On August 28, 2010 my 14 year old son was killed in a home invasion gone bad. He was spending the night at a friend's house like he did every weekend. On Saturday morning at about 4:20 am two men broke through the front door and began shooting all males in the house. They were looking for drugs and money I guess. My son Freddy and his friend were asleep on the living room floor. The friend was grazed by a bullet on the head. My son was shot in the arm. He ran to a friend's room to warn them about the shooting. One of his friends in the room was going to jump out of the bedroom window when my son pushed him out of the way. Freddy then tried to jump out first but on the other side of the window there was another shooter waiting. As my son tried to jump out, the guy reached in and shot him. I was told that was the fatal shot. My son was pronounced dead at the hospital. It's been 10 months now and we're still waiting for evidence to come back. Two men are in custody for parole violation and are considered the main suspects.

My question to you is this: Can the family living in the house where my son was murdered be held accountable for his murder? I know that if I were in a car accident and hurt someone I'd be held accountable for their injuries, so I guess I'm wondering if this is somehow the same. Your response would be greatly appreciated.

The murderers are responsible for the murder. Under the circumstances as you describe them, I don't see how either the homeowners or the family living there could be liable.

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Thank you for consideration of this question. My question relates to what happens when the investigating police agency and the prosecuting attorney cannot seem to communicate and work together on a case for justice. My Father-in-Law was murdered last spring, a suspect was named immediately and initially law enforcement seemed confident that a warrant would be forthcoming quickly and an arrest made (let us say within the first two-week time frame). We are now nearly six months later and no warrant has been issued.

The investigating police department seems quite adamant that the evidence points to one perpetrator, and although they have no murder weapon they feel that enough physical and circumstantial evidence exists to prosecute successfully. They are telling us the prosecutor will not listen to them, that he has another theory that they believe makes no sense at all. The detectives have however honored all of his requests such as re-interviewing everyone involved, tested every scrap of evidence that exists, and have looked at other parties that the prosecutor felt may have been involved. They still believe they know who did it, how he did it and what he did afterwards. Our family decided to call the prosecutor to get his views. He insists that he is correct and detectives are wrong and they need to prove him wrong. My fear is that these two agencies are at a point of stand-off. They both believe they are right and neither is going to budge. Quite frankly, the family feels the detective’s theory is correct but I also understand that the prosecutor is the one who has to make the case beyond a reasonable doubt. At this point neither agency hides their disdain for the other when we have spoken with them and although not totally unprofessional, it is clear they are not going to work together on this case. It is obvious that there is more going on here with personalities, politics, or something. What can we as a family do when authorities won’t work together? I don’t want another father, husband, grandfather killed because two agencies cannot agree to work together while he runs the streets.

This situation poses some troubling questions. Unfortunately, it does happen that law enforcement officials sometimes blind themselves to facts and end up pursuing the wrong suspect. What is particularly troubling is that in your Father-in-law's case, the police and prosecutor do not even agree among themselves.

It sounds like you have had more communication with the detectives. Have you sat down with the prosecutor and reviewed with them their theory?

If such a meeting proves unsatisfactory, you might try contacting your state attorney general. Some states' AG's offices take a very active role in felony prosecutions. In others, the AG criminal division is small, and unable to handle but a limited percentage of criminal cases. Where, as here, the locals can't seem to move forward, the AG might be willing to step in and take over the investigation and prosecution. Find out from your detectives if that is a viable option.

With the situation as apparently polarized as it is, I don't believe the police would be reluctant to step on some toes.

The details in such matters are sensitive. Please feel free to give me a call to discuss this further; I would be willing to schedule a conference call with you and your family.

In any event, Good Luck,

-Brian Zubel, Attorney

[top]--------------------------------------------------------------------------------Can a person write into their last will and testament that they do not under any circumstances want an autopsy to be performed? Will that final wish be respected?

A person may include anything they wish in their will. A will, however, cannot preclude an autopsy from being performed. Medical Examiners have the statutory authority and professional responsibility to investigate all suspicious and unexpected deaths. This is based on very sound public policy.

Imagine the circumstance where an individual is exercising undue influence on an elderly or otherwise infirm victim. If they were able to cajole their victim into writing such a will, at the same time making themselves the beneficiary of the estate, an elder abuser could then murder their victim and raid their assets with virtual impunity. Elder abuse and exploitation is an enormous problem. The authority to investigate all suspicious deaths provides an important protection for the vulnerable.

-Brian Zubel, Attorney

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-------------------------------------------------------------------------------My son, Zack was murdered on Dec. 18, 2013 by a friend, Matthew, in Winston Salem North Carolina. The only information that I have is what the investigating Detective told me the day of the murder, which is what Matt told them happened. Matt and Zack met at a 24 acre secluded farmhouse that Matt's girlfriend mother was renting to do a drug deal. Zack was the "runner" They smoke pot together, Matt said that Zack robbed him (which I don't believe as they had been friend for over 8 years). Zack left the house and got in his car to leave. Matt grabbed his gun and went after Zack, standing in front of his car. Matt stated that Zack tried to run over him and he proceeded to shoot at him. An entire clip was emptied into Zack's car with him being hit 8 times; through the right eye, in the chest, down his side, in his back and in his right knee. There was a gun in Zack's car that had been fired once. Zack car rolled down a hill and hit a tree. The police did not charge Matt at the time. Being from a police officer family, I assumed the police were waiting for evidence to have a firm charge. The only communication that I have from the police is when I initiate an inquiry.
In Jan. of 2014, less than 30 days after my son's murder, the Chief of Police was reviewing each homicide that occurred in Winston, before the City's public safety committee. When he explained Zack's case he simply stated that it was two guys with guns, a robbery and one got killed. In May 2014 the Asst. DA and investigating officer met with myself and my Uncle. The DA informed me that "they" had decided to not press charges against Matt because I had Zack hospitalized due to concern of drug dependency, and that she did not believe she could convince a jury that Matt was guilty. Both myself and my Uncle felt that the Asst. DA was very condescending towards me and showed no sympathy. I was floored and felt that she put the blame of Zack death on my shoulders. At this meeting my Uncle asked the Detective if they had tested Zack's hands for gun powder residue and was informed that they had not. Several month's later, I hired PI, a former police detective, to look more into the case as I was suffering not only from the trauma and shock of my son's violent death, but also the treatment of the police and DA's office. To date, the PI has found out that there are no search warrants on file, that Matt was not tested for drugs in his system, has great concern about the direction of the gun shoot wounds, and that Matt was known to be a big time drug dealer by county police. Toxicology reports on Zack where could not be processed because the vials were opened and contaminated.
In Feb. 2014 I received a phone call from the Detective telling me they were arresting Matt on conspiracy to traffic drugs on the night of the incident. That hearing was held in May of 2014 (two weeks after I met with the Asst. DA). At this hearing, I was not sequester from Matt. In fact, unknowingly I was sitting one person over from him. At this hearing I found out that he had not called the police for 55 minutes to report the incident. His attorney is an extremely high powered attorney that represents the Police Benevolence Society, FOP lodge, and all of the partners in his firm are prior DA's or Asst. DA's. I was appalled at the behaviour of the
Asst. DA as she met with Matt's attorney as there was some type of "happy dance" between them right before my eyes. The Judge in the case stated that if this was a murder trial she would be convicting Matt on murder charges but because it was a drug trial the only thing she could do was give him the maximum sentence of 18 months. After this hearing, I spoke with the Asst. DA in the hall and request for Zack's possessions to be returned to me. She stated that I could not have them. When I pressed her as to why not if the case was closed, she became flustered and blurted that the case was suspended. She then asked, what exactly did want. I stated that I was not sure as NO ONE would provide me a list of the inventory. I stated that I wanted a bible that I knew was in his car and a necklace that Zack wore that held a masonic charm of my deceased father. She said I could not have them.
Again, the police only communicate to me when I inquire. I asked, by email yesterday if the case was opened or close and the response was the case is closed but there is evidence that they are still waiting for from the State Crime Lab. I have requested by letter, the last one by certified mail, to meet with the DA. All request have been ignored.
I am extremely distraught a the lack of compassion and professionalize of the the authorities that are suppose to protect and serve the citizens of this state and country. I do not have the funds available to hire attorneys to help me with this situation. I cannot move on or heal from this trauma until I have answers, nor can I walk away and ignore. What advice can you give me? Your help is greatly appreciated.

Let me begin by expressing my sympathy over the loss of your son.

It is difficult to comment on the facts of the case as you present them. From your case summary, it is apparent there are many gaps in the information you have been provided. There are several circumstances here that raise suspicion, but it is impossible to reach any conclusions on the basis of what is available to you at this point.

With respect to your concern over the return of personal effects, it is entirely normal that the police are reluctant to return possible evidence. This reinforces the suggestion that the police still consider the investigation open. By "open" I do not mean to suggest that the case is being actively pursued, however.

POMC offers a second opinion service, through which their independent experts re-examine closed cases. You may wish to present you son's case to them. They might be able to answer your questions.

I wish you the best of luck in your pursuit of justice.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My brother was brutally murdered by his adult son, who has schizophrenia. Shortly after the murder, I was contacted by the Chief detective, who asked simple questions as to who I was, and what relation I was to my brother. At that time, he took my name, address and phone number. He had obtained my cell number from texts on my brother's phone.
Months went by, as I was waiting to be contacted by the DA and Victim Advocate, regarding the case ( I live out of State). I was never contacted, and later found out through the media, that a plea deal was accepted for 2 nd degree murder, instead of first degree with no parole ( and trial).
I had not been given the opportunity to write an impact statement, be interviewed, or participate in any way. The DA was shocked when I called after the sentencing, as he was told by my brother's spouse, that there were no other surviving family. I was given an opportunity to meet and ask questions, but all after the fact, unfortunately.
Someone " dropped the ball" here. What is the usual procedure involving siblings of a homicide victim ( my parents are both deceased). Do I have any options now, and if so, what are they?

First, let me express my sympathy, not only over the tragic loss of your brother, but also the lost opportunity to participate in the legal process.

You are correct; after the detective took your personal information the authorities were certainly on notice that you were family and needed to be kept informed.

In fairness, I can see how this lapse in communication occurred. When your brother's spouse told the DA that he had no living relatives, he probably accepted that at face value. When a case is being pled, the amount of communication between the prosecutor and the original investigating agency frequently falls off to zero.

This certainly would not constitute grounds for re-sentencing or other legal redress. In fairness to you and for your own peace of mind, the DA and detective should be willing to meet with you and address your questions in detail. The prosecutor had an obligation here; simple decency requires that he expend some effort to make it right.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was shot and killed by his girlfriend, he was ending their relationship. Originally she said she had nothing to do with his death then she said it was self defense. He was shot in the back and in the head. I understand there has to be an investigation it's been a month. He was leaving because she constantly stole his things and pawned them for drugs. He tried to get her in rehab over and over but he was done with her. After she sold a gift bought her for Christmas and she tried to get into his bank account he was done. The detective found the gun in my sons vehicle which she took. I'm not getting the communication from the detective I feel I should get he has never responded to my call and he has only responded to one email. I called victims services and they called him his responses was. " I do not have anything new I can share, but that does not mean I don't have anything new. I will call when I have something new to share". I feel some what positive but I also feel like he's saying don't call me I'll call you and that's not good enough. What should I do and does it make since that she has not been arrested? In all fairness I feel good about the detective but his level of communication leaves me unease. I want to go to the media just to keep his case out there could it case problems in any way? I have so many question but I'll stop here.

When you indicated the matter was taken before the grand jury, do you know if the prosecutor actually requested a true bill? Getting an indictment is usually pretty easy.

The reason I ask is that the prosecutor may as yet only be using the jury as an investigative tool, which would make some sense in light of the detective's comment.

I would hold off on doing anything until we confirm the status with the grand jury.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------I am wanting to know what to do or who to call about a District Attorney taking the case from a Associate DA on a death penalty case and decided on his own to not file the death penalty. My daughter was murdered as she witnessed the murder of her friend committed by a “murder-for-hire” punk in November 2014. In the last month, the Public Defender brought up sealed Juvenile and DHS records. This DA supports reforming juveniles who have been in the system so we firmly believe after reading those sealed records, he personally decided he would not file for death penalty charges. There are witnesses and DNA to support the case.

I know the Feds are getting closer to arresting the friend’s ex-husband after three people have been murdered by hired thugs.

Can my State Attorney General office help me in anyway? Where to turn to?

The DA has the power to exercise prosecutorial discretion and not seek the death penalty, if that is his choice.

Under Oklahoma law, the elected DAs are accountable to their individual constituencies. They exercise their discretion to prosecute independent from the AG. The AG does not have the authority to review the charging decisions made by DAs.

When you indicate the feds are "getting close" to making an arrest, what exactly are they doing?

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My son was murdered sometime between 12: midnight March 19 – and 2:am March 20. My daughter and I found his body March 21, 2015. His girlfriend is the only suspect initially she turned herself in the same night we found him and she said she had nothing to do with his death. Later they questioned her and she said she did it in self-defense.

She was stealing from my son for drugs he tried to help her get into rehab but she would not go, this went on for three years. He was tired and ready to end their relationship. The officer and prosecutor believe the case is solid against her but circumstantial as they said, the gun was found in the truck she was in which was my sons. She tried selling his things that night my, problem is the prosecutor has yet to even present his case to the grand jury he has had my sons case for five going on six months. I feel he’s making excuses as to why he has not presented the case. He said he wants to present the case to a specific Grand Jury, an experienced jury so they will not ask for things not necessary to the case etc.….

They have my sons autopsy report and all other reports per prosecutor and per officer the investigative side has been completed. Why would it take so long. I understand the trial can take time but why would it take so long to present the case to the Grand Jury? He said he did not want to get my hopes up but he could not imagine them not indicting her.

I don't know all the facts of your case, but the the prosecutor has offered you an explanation for his reason for waiting to go before the grand jury. "Forum shopping" is a real tactic; he may have perfectly sound reasons for wanting to present the matter to a more experienced GJ. In wanting to do a good job, some juries can get themselves bogged down in too much detail. Avoiding that may be a sound tactic.

Delays occur all the time in capital cases. I don't think there is anything to do right now...it sounds like the prosecutor has a plan. Let him pursue it.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------My nephew was murdered in 2013. Have not been to trial yet, but suspects have been in custody 1 year. My question is about the incompetence of the Sheriff's Dept. involved. They have made SEVERAL crucial mistakes that may cause the suspects to go free. Things such as taping over a video taped confession of one of the suspects. My question is, can the family sue the Sheriff's dept. for this incompetence? Is such wanton disregard basis for a lawsuit?

I am very sorry for your loss.

Police agencies can be sued for violating one's constitutional rights. What you describe here as incompetence does not rise to the level of a constitutional violation.

The US Supreme Court has made it clear that there is no constitutional right to be protected by police agencies against murderers and other maniacs.

The short answer is that there is no basis for such a lawsuit.

-Brian Zubel, Attorney

[top] --------------------------------------------------------------------------------First – my question is about the Miller vs Alabama case – Then just recently Montgomery vs Louisiana making the ‘Miller’ case retroactive for juvenile’s who committed their crime before they turned 18. This was completed by the United States Supreme Court this past January 2016. Giving each and every one person in prison who committed their crime before they turned 18 a new sentence – they deemed it cruel and unusual punishment to sentence kids to prison with life without parole.
I am the victim of a triple murder, am registered with the VINE program, and was never ever notified that this was going on. Are the victims not allowed to voice their opinions? He took the final breath out of my brother, niece and sister in law – obviously they can not voice their opinion. As I understand it there are aprox 2, 000 of these offenders nation wide. I do know in several states you can register to be notified if the person has filed anything in court or for a parole hearing. I learned about this ruling by mistake by the way – or I would still not know it was happening. Even if their was a place for me to register about parole hearing – I would not have – as he was sentenced to life without parole. I am honestly not understanding how 9 people (US Supreme Court) can changed and make a retroactive deal like this without notifying ANY victims. I am wanting or needing to know how I would have known this was going on – let alone finalized. How will future victims – even if I do not benefit from something being done – how can I set up something to notify victims of this complete non sense in my opinion?

The concerns you raise regarding victim notification are legitimate. It is an especially interesting question in that this involves the USSC.

The Supreme Court, it must remembered, is an appellate court. As such, while its rulings may directly affect the rights of parties, it is not the court that will actually re-sentence these individual defendants.

VINE is set up to notify victims as cases come back to the trial-level courts; it is these courts that are actually responsible for the re-sentencing of defendants. It is through the trial courts that notification of re-sentencing hearings and court dates should be expected.

I hope this makes some sense.

-Brian Zubel, Attorney

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--------------------------------------------------------------------------------Do you know what I'm allowed to know and have regarding police reports etc... It is pending a pre trial for suspects dragging a dead body. Slim chance they'll get charged being the said he was still breathing. It it ok that in the meantime while awaiting pre trial, that I contacted the news regarding this. The suspects Atty has all info, why can't I know?

The defense has all the material because they are entitled to it under the rules of discovery.

A lawyer can't defend a person if he isn't privy to the case details.

Aside from that, pretrial disclosure of investigative materials is very restricted for a reason.

The prosecutor, and by extension, the police have an obligation not to make public disclosure of information that could influence public opinion and prevent a fair trial.

The defense attorney is bound by the same rules regarding pretrial publicity.

Hi. Daughter was killed by dealer mixed drug cocktail cocaine kolonipin and the heroine death pill opana! Police will not charge him . What can we do?

It frequently occurs that individuals who use one dangerous drug for recreational purposes will often supplement it with others.

Can it be shown the drugs were sold at different times or by different individuals? If it cannot be, proof of criminal intent will be a problem. Selling drugs is a problem...proving homicide is quite another,

What information can I as a family member of a murder victim request of the jurisdiction where the homicide was committed decades ago? My sister, was discovered in the trunk of her car on the campus of Indiana State University in Terre Haute, Indiana, by our father and me in 1972.

Some reviews of the case have been done over the years -- something I'm very grateful for -- and I'd like to know as much about the case as possible without compromising a future trial. Soon I'll call the lead investigator and would appreciate guidance on what information I can request? Given the age of the files I'm willing to travel to that town to look at paper files, if necessary. Knowing what happened and what has been uncovered during the investigation and reviews of the case is important to me, as that may be the best I can hope for in my lifetime. Also, some memories have faded over the 40+ years since the murder, and some information was only shared with my father (who is now deceased) and not with this 18 year old sister of the victim.

What a tragic situation you have endured! I can certainly understand your desire for closure and admire your commitment to your sister's memory.

In regards to your inquiry, I appreciate that you have an understanding as to why all details of a case cannot be disclosed. What you wouldn't want to happen is to jeopardize any future investigation and/or prosecution. I also understand your desire to learn what details law enforcement would be willing to share with you.

Questions I would ask would involve the types of evidence that may have been collected from the crime scene. While the science of DNA didn't exist in 1972, it is possible that some of the evidence that was collected may in fact contain DNA samples. An example of this might be hair or other stains that may have been sampled and booked as potential evidence. Obviously, it her death involved a sexual assault, there may be evidence there that could yield a DNA profile.

I have had the opportunity to look back through some cases that pre-dated my career and have found evidence that I was able to develop profiles from. The difficulty then comes in matching the profile to an individual but, it's a step in the right direction. Any samples developed from this effort can be checked through a database that contains profiles of thousands of sex offenders and other felons. If the police had any potential suspects in mind at the time of the crime, they can perhaps obtain specimens from those individuals that they can use to compare to the now, "know profile."

It's a long-shot but one worth taking.

Other questions could involve those potential suspects. While I wouldn't expect them to provide you with names, they could describe the connection, if any, between your sister and the suspect, and let you know whether that individual was completely exonerated or remains a potential suspect.

Your offer to fly there to have the conversation in person shows your desire to obtain the facts but I doubt whether it would change the outcome. I would begin with a phone call to the investigators assigned and inquire as to whether or not they would allow you to look through the documents that they have. I suspect the answer would be, "no." I too would not allow anyone to view the case files of an unsolved murder.

In the end, ask any question that comes to mind. They should understand your desire for the answers and answer those that they can.